Impartial Hearing Decision

In the Matter of an Impartial Hearing pursuant to Part 200 FINDINGS OF FACT AND ORDER of the Regulations of the Commissioner of Education BEDS No. REDACTED NYS ID. No. 578468

PARENTS on behalf of their minor daughter, REDACTED

-against-

The REDACTED Central School District

Procedural Context

By letter dated September 7, 2022, I was appointed to hear the matter of REDACTED and REDACTED on behalf of their minor daughter, REDACTED versus the REDACTED Central School District (hereinafter “the District”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). and its implementing regulations, 34 C.F.R. § 300 et seq. as well as the New York State Education Law, Educ. Law § 4404 et seq. and its implementing regulations, 8 NYCRR § 200.5 et seq.

Thereafter, on October 20, 2022, a pre-hearing conference was convened telephonically for the purpose of developing a litigation calendar and, where possible, framing the issues. At this time, the undersigned was advised that the parties were unable to come to an amicable resolution of the above-captioned matter. As a result, hearings were held on November 15, 2022; November 29, 2022; November 30, 2022; December 7, 2022; December 14, 2022; December 15, 2022, and December 29, 2022. On this last occasion, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result, the compliance date for issuing a decision in the above-referenced matter was duly extended February 21, 2022. This is the decision date, dissemination date and Findings of Fact date.

Specifically, the Parents’ Due Process Complaint asserts several claims. At the outset, the Parents assert that the District stands in violation of its child find responsibilities consistent with § 20 U.S.C. § 1412(a); 1412(a)(3)(A) during the 2020-2021 school year. They further assert a denial of FAPE for the 2021-2022 and 2022-2023 school years, based, inter alia, upon the District’s failure to offer appropriate supports to maintain their child in a program which comports with the least restrictive environment. Consequently, the Parents are requesting compensatory educational services for three school years, commencing with the 2020-2021 school year. The Parents additionally seek a comprehensive triennial review of their child’s educational, behavioral and emotional status.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2020-2021 school year, the student was approximately REDACTED years old and receiving preschool services. I note that REDACTED was initially classified as “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and was subsequently classified as “autistic” as that term is defined by 20 U.S.C. § 1401(a)(1). Exhs. 79, 81. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

A list of persons in attendance and of evidence is appended hereto.

The School District’s Case and Summary of Witness Testimony

ADMINISTRATOR testified as lead witness for the School District. Ms. ADMINISTRATOR is the Director of Special Education, both CSE and CPSE, for the District. She is, additionally, the positions she has held for two years. The witness holds a Masters in Science of Teaching and maintains initial school building leader certification. However, she is not currently certified through New York State to teach childhood education, nor has she ever been certified to teach special education. November 15, 2022 Tr. at 42, 103. She has, however, previously been certified to teach childhood education and has additionally taught within an ICT class as the general education culinary arts teacher in a Career and Technical Education Center.^[1] She has additionally served as a substitute teacher (K-12) and educational coordination at the Strand Art Center.

Although she began her tenure at REDACTED midyear 2020-2021, Ms. ADMINISTRATOR testified that she was familiar with REDACTED, having been prepared and guided by the former CSE chairperson. At that time, the witness indicated that the District and various County Department of Health providers were engaged in developing a preschool program for the child. Ibid. at 44-45, 108. Ms. ADMINISTRATOR testified that, although services may be recommended on a preschool IEP, the provision of these services originates from the County. She noted specifically that the District is not approved by New York State to provide preschool services. November 29, 2022 Tr. at 151, 220-221.

In June 2019, REDACTED was classified as a Preschool Student with a Disability. Exh. 82. Ms. ADMINISTRATOR noted that the preschool program in REDACTED only offers a general education setting. There is no special education teacher within the preschool program. Alternative special education programming and enrichment is not furnished although there are agencies in REDACTED County that provide alternative 6:1:1; 6:1:2 and 12:1:1 preschool paradigms. Related services are not provided by the District. Rather, these supports are offered and administered throughout the County. When services are mandated, they may be home-based or offered as push-in support. November 15, 2022 Tr. at 44-45. Exh. 82 at 2 ^[2] (Bates 2092). Among the services mandated in the child’s preschool IEP of June 17, 2019 were:

• SEIT services: (3 x 60-minutes, 1:1) sessions per week;
• Occupational therapy: (1 x 45-minutes, 1:1) session per week;
• Speech-Language therapy: (3 x 45 minutes, 1:1) per week.

At the time of this preschool IEP, the record indicates that REDACTED was primarily receiving services at home or in the community. Ibid.

On April 21, 2020, the CPSE reconvened to address the 2020-2021 school year. Exh. 81. The child remained classified as a Preschool Student with a Disability. Services were again mandated with certain modifications as follows:

• SEIT services: (3 x 60-minute) sessions per week;
• Occupational therapy: (1 x 30-minute) session per week;
• Speech-Language therapy: (3 x 30 minute, 1:1) per week;
• Speech-Language therapy: (2 x 30, small group) per week.

By this time, the record indicates that REDACTED was already beginning to struggle. As per the April 21, 2020 IEP, the child was demonstrating an 18 month delay in her overall speech intelligibility and was still working towards establishing appropriate eye contact and on-task performance. Exh. 81 at 4-5, (Bates 2081, 2082). Although the child remained home during the day, some related services^[3] were received at the REDACTED Public Library. Nevertheless, Ms. ADMINISTRATOR acknowledged that REDACTED received no SEIT services during the prior 2019-2020 school year “due to a shortage of providers.” Exh. 81 at 5 (Bates 2081). Thereafter, the April 21, 2020 CPSE IEP specifically mandated REDACTED’s preschool services at the REDACTED Elementary School. Exh. 81 at 10 (Bates 2087).

The following year, on May 6, 2021. REDACTED’s IEP was amended to include extended year services. November 15, 2022 Tr. at 49; Exh. 80. While the child’s functional language was considered “adequate for her age,” and the child’s development of “preschool concepts” were a relative strength, essential classroom skills such as following multi-step directions and observing routines remained challenging. Exh. 80 at 6 (Bates 2050). Significantly, the IEP references several ongoing dysfunctional behaviors, including elopement, bolting and tantrums when play is interrupted. Exh. 80 at 6, 9 (Bates 2050, 2053).

On June 3, 2021 the CSE convened to develop REDACTED’s first school-age IEP for the upcoming kindergarten 2021-2022 school year. November 15, 2022 Tr. at 50, Exh.79. Present at this meeting were several related service providers as well as the District psychologist. Both preschool SEIT teachers, TEACHER 1 and TEACHER 2, were additionally present and so noted on Ms. ADMINISTRATOR’s handwritten notes. December 7, 2022 Tr. at 466. Exhs. 79, 84; November 29, 2022 Tr. at 175, 184-185. At this time, the child was classified with autism and a special 12:1:1 kindergarten class was recommended. Additional supportive services included:

• Speech and Language therapy (30 minutes, 1:1, 3 times per 6-day cycle);
• Speech and Language therapy (30 minutes, small group format, 6 days per 6-day cycle);
• Occupational therapy (3 days per 6-day cycle);
• Counseling, (30 minutes, 1:1, one day per 6-day cycle)
• Counseling (30 minutes, small group format, 1 day per 6-day cycle;
• Assignment of a full-time 1:1 paraprofessional. Exh. 17 (Bates 1036).

Clearly, the child had achieved many preschool skills during the prior 2020-2021 year, although it is unclear whether these skills were obtained at home. Indeed, the IEP indicates that the “there are no parent concerns regarding academic skills at this time.” Exh. 79 at 4. Rather, the child’s behavior management issues were spiraling upwards with increasingly dysfunctional and self-isolating behaviors - behaviors which were becoming more evident as her peers matured. Exh. 79 at 7 (Bates 2041).

At the outset, the June 3, 2021 IEP indicates that REDACTED was struggling with impulse control (i.e. screaming, crying, running around in circles, scattering work materials, elopement from the classroom). Exh. 79 at 5. While the IEP notes that the child requires positive behavioral interventions, supports and other strategies to address classroom management issues, a behavior intervention plan was, nevertheless, not recommended. Exh. 79 at 8 (Bates 2042). Rather, a range of accommodations were incorporated into the document. Specifically, the IEP documents the recommended use of visual cues and a schedule to facilitate transitions in addition to the use of “if - then” verbiage, a parent log, puppets, teacher modeling, physical gestures/prompts and flexible/ preferential seating, among other things. Significantly a 1:1 paraprofessional was mandated. Ibid.

Ms. ADMINISTRATOR testified that the Parents ultimately objected to the June 3, 2021 IEP. At the outset, they continued to believe REDACTED could be supported within a mainstream classroom with typically developing peers. They further objected to counseling services, notwithstanding a discussion about the value of this service for children whose social skills are compromised. They did agree, however, that a physical therapy evaluation in the fall would be valuable. November 15, 2022 Tr. at 56-57; Exhs. 17 (Bates 1036-1037), 34 (Bates 1070); November 29, 2022 Tr. at 179; December 29, 2022 at 965. Ms. ADMINISTRATOR indicated that the Parents’ objections to counseling reflected their interest in maximizing REDACTED’s presence in the classroom. November 29, 2022 Tr. at 189-190.

Again, Ms. ADMINISTRATOR testified that the benefits of the 12:1:1 paradigm were reiterated to the Parents. Among other things, the witness noted that this setting inherently included many instructional modifications and facilitated the use of push-in services as there are more students requiring similar services at the same functional levels in a smaller format. Ibid at 190-191. She further noted that the total amount of time spent out of the classroom could not be determined until final schedules were developed. However, the witness affirmed that scheduling was always conducted with an eye toward maximizing classroom participation. Ibid. at 195.

By July 28, 2021, the District had developed a new integrated co-teaching class (hereinafter referenced as “ICT”) in its belief that this format might be preferable for some children than the special 15:1 paradigm. Exh. 78. The witness indicated that, in the spirit of working collaboratively with the Parents, the District subsequently agreed to place REDACTED in an ICT class. Exh. 35, 78. On or about July 28, 2021, the CSE promulgated a new IEP to reflect placement in an ICT classroom. The parties further agreed that an FBA, BIP and physical therapy evaluation would be conducted in the Fall. Ms. ADMINISTRATOR testified that the new ICT kindergarten class had 17 students, five of whom were classified. November 29, 2022 Tr. at 203. The recommendation states:

• Integrated co-teaching class – math;
• Integrated co-teaching class – ELA
• Occupational therapy group 3 (30-minute group sessions) per 6-day cycle;
• Speech-Language therapy 6 (30-minute group sessions) per 6-day cycle;
• Speech-Language therapy 3 (30 minute 1:1 sessions) per 6-day cycle.
• Teacher Aide/Student Aide (1:1) daily throughout the school day.

In October 2021, the District conducted a Functional Behavior Assessment (hereinafter “FBA”), Behavior Intervention Plan (hereinafter “BIP”) and physical therapy evaluation. Exhs. 36 (Bates 1072), 56.^[4] Thereafter, an FBA and BIP were prepared by CLINICIAN 2 and CLINICIAN 3 with additional input from REDACTED’s providers. It should be noted that the District’s FBA and BIP are conflated into one document. Exh. 57. November 15, 2022 Tr. at 64-67. Ms. ADMINISTRATOR testified that the District does not employ a BCBA^[5], nor did the County have one at the time of these proceedings. November 30, 2022 Tr. at 343. Finally, in September 2021 a physical therapy assessment was conducted. The report articulated several safety concerns related to motor deficits in coordination, balance, agility and strength. Exh. 56.

Thereafter, and on October 28, 2021, the CSE generated a new IEP reflecting their review and adoption of the FBA and BIP prepared by Ms. CLINICIAN 1. Exh. 77. Although the Parents agreed to the implementation of a BIP, they continued to reject both counseling and physical therapy, despite the CSE’s opinion that counseling would have been an opportunity for REDACTED to practice many of the social skills articulated in her IEP and BIP. November 29, 2022 Tr. at 224-225. Likewise, the Parents rejected the physical therapy recommendations, again believing that REDACTED’s time in the classroom was a paramount concern. Exh. 79 at 19 (Bates 1044).

Effective November 16, 2021, the child’s providers began implementing the child’s BIP. Exh. 77 at 23, 30. (Bates 1072, 1054). Nevertheless, Ms. ADMINISTRATOR testified that she continued to receive negative behavior reports from District principal REDACTED, as well as TEACHER 3 and TEACHER 2, the child’s integrated co-teachers. Beyond these reports, the witness had ongoing conversations with occupational therapist CLINICIAN 4, speech and language provider, CLINICIAN 5 and school psychologist, CLINICIAN 5, a member of the school crisis team. November 15, 2022 Tr. at 71-74. As the year proceeded, the witness testified that a broad review of the child’s progress toward safety, in terms of transitions, multi-step compliance and social skills, reflected little to no advancement.^[6] November 15, 2022 Tr. at 76; Exh. 60, passim. In some smaller settings such as occupational therapy, the witness reported the emergence of positive skills which were, nevertheless, not generalized to the classroom. Ibid. at 78. Despite the implementation of REDACTED’s BIP and the presence of a full-time 1:1 aide, the child’s classroom teachers and related service providers continued to approach Ms. ADMINISTRATOR with concerns about REDACTED’s dysregulation and dysfunctional behaviors.

On April 12, 2022 the CSE convened an Annual Review for REDACTED in anticipation of the 2022-2023 school year. Exh. 76. At this time, Ms. ADMINISTRATOR testified that the child’s providers and teachers uniformly agreed that the ICT setting was challenging for the child, even with the assistance of a 1:1 paraprofessional. Many of the Committee’s participants expressed concern that REDACTED had made minimal progress, most of which had occurred within a 1:1 setting but were not generalized within the classroom. As a result, the CSE again recommended a special 12:1:1 class at the REDACTED location, a mainstream school in the District. This program would include a small, structured academic environment supplemented by mainstreaming opportunities in all special classes, lunch and recess. November 15, 2022 Tr. at 92. Where appropriate, the witness additionally noted that mainstreaming in academic subjects was possible, referencing a 12:1:1 student who was presently doing this.

In addition to the 12:1:1 support, group services in occupational therapy and speech were endorsed along with individualized speech and language therapy. The IEP further mandated assignment of a dedicated 1:1 paraprofessional, a school-home communication log, sensory supports and breaks. November 29, 2022 Tr. at 211-212; Exh. 76, passim.

While the witness acknowledged that the Prior Written Notice only reflected consideration of the 12:1:1 placement, Ms. ADMINISTRATOR testified that should REDACTED’s academic and behavioral issues be ameliorated by the supports offered within this program, the child could return to her home school. November 15, 2022 at 93-94; November 29, 2022 at 217. Again, the Parents disagreed with the Committee’s 12:1:1 recommendation. Ibid. at 90.

In preparation for the April 12, 2022 convene, Ms. ADMINISTRATOR testified that school personnel prepared draft entries on the child’s proposed IEP. REDACTED’s teachers had, moreover, collaborated and communicated with each other during the year and had spoken with the Parents. November 29, 2022 Tr. at 205-206. A psychological assessment from May 2019 was additionally utilized.

Nevertheless, while the April 12, 2022 IEP indicates that REDACTED entered kindergarten with strong foundational knowledge (letter identification, counting to 20, labeling shapes and colors), the child clearly struggled to acquire new skills as classroom demands became more sophisticated. In furtherance thereof, the April 12, 2022 IEP reports that REDACTED becomes overwhelmed easily and engages in escape behaviors when challenged. Exh. 76 at 4 (Bates 2002). However, when levels or stimulation are moderated and instruction provided on a 1:1 basis, the child demonstrates the “potential to have a good rate of progress.” Exh. 76 at 4 (Bates 2002).

CLINICIAN 1 additionally testified on behalf of the District as a school psychologist. Ms. CLINICIAN 1 holds a Master of Arts certificate in school psychology and is permanently certified by New York State in school psychology. She has attended conferences on autism, including seminars on developing FBAs and BIPS. She further testified that she has worked with the autistic population at the Center for Autism and Related Disorders in Albany, New York. She has known REDACTED since the onset of the 2021-2022 school year. The witness described the manner in which the FBA/BIP was developed.

At the outset, Ms. CLINICIAN 1 noted that she had prepared the FBA and BIP in collaboration with other personnel. In furtherance thereof, she observed that questionnaires had been completed by several individuals collaboratively, rather than as individual providers. November 29, 2022. Tr. at 277. The witness further based her knowledge of REDACTED upon three formal observations lasting between 20 and 45 minutes, completion of the BASC -3 and discussions with school personnel who had worked with the child. Ms. CLINICIAN 1 noted, moreover, that she had informally observed the child when assisting in the classroom and during two mindfulness lessons. Finally, Ms. CLINICIAN 1 indicated that she conducted a record review which included the 2019 preschool evaluation. Exh. 49.

She noted that the BASC-3 (hereinafter “BASC”) battery includes assessments of various internalizing and externalizing behaviors, social behaviors, attention, hyperactivity, withdrawal, among others measures. Exhs. 83, 57, passim. Ms. CLINICIAN 1 testified that, based upon the responses of contributing personnel, a BASC score is developed which indicated clinically significant at-risk areas of function. For REDACTED, areas of concern reflected attention, atypicality, withdrawal, developmental social disorders and executive functioning. Exh. 57 at 3 (Bates 3122). The witness testified that the subsequent BIP did not attempt to address all issues concerning REDACTED. Rather, it was directed primarily at resolving attentional and compliance behaviors. November 29, 2022 Tr. at 249; Exh. 57 at 1 (Bates 3053).

Of primary concern was the fact that REDACTED required multiple repetitions of directions before achieving compliance. In addition, on-task performance was significantly compromised as was the child’s ability to orient/attend to instruction. Based upon the FBA, the child was engaging in escape behaviors (ignoring, wandering, running, crawling around the room) in order to avoid undesired demands or activities. Ms. CLINICIAN 1 testified that the antecedent behaviors addressed in the BIP were specifically articulated in the FBA. Finally, understanding that REDACTED would likely not comply upon the first request immediately, smaller interim goals were developed, utilizing verbal and non-verbal prompts, in an effort to maximize the odds of success. November 29, 2022 Tr. at 281-282. Although the BIP was informally implemented in October 2021, the Board of Education did not approve it until November 15, 2021. Exh. 77 at 30 (Bates 1054).

On cross-examination, Ms. CLINICIAN 1 acknowledged that the data upon which the efficacy of the BIP was predicated reflected the number of smiley faces present in her daily charts. The District did not, however, organize any formal quantitative documentation, such as graphs, to ascertain REDACTED’s progress. November 30, 2022 Tr. at 294; Exh. 72 (Bates 5000-5186). Moreover, the data did not include baseline information describing specific dysfunctional behaviors, frequency, duration or intensity across activities, settings and people. Ibid. at 320-324. Indeed, although Ms. CLINICIAN 1 referenced the presence of antecedent behaviors, their definitions are referenced broadly. Ibid. Ultimately, the daily behavior charts in their raw form constituted the data gathering process for the BIP. Ibid. at 300. However, the classroom clip charts, a visual cue reflecting the child’s negative and positive behaviors, were additionally incorporated into the smiley face paradigm.

Supplementing the BIP, CLINICIAN 2 pushed into the classroom with Second Step lessons, a whole class curriculum for establishing pre-learning skills such as sitting, listening and focusing appropriately. In addition, students were taught to recognize and articulate feelings of frustration, develop empathy for others and cultivate appropriate social skills. November 29, 2022 Tr. at 253, November 30, 2022 Tr. at 299. The witness additionally testified that preventive techniques were utilized as a means of mitigating anxiety and emotional stress. This included a visual schedule which prepared REDACTED for the next activity, thus offering the child knowledge and a sense of control over the day’s schedule. Replacement behaviors were additionally developed, reflecting the use of calming techniques and eye contact to acknowledge direction and attention. Among her duties, Ms. CLINICIAN 1 noted that the child’s 1:1 paraprofessional reinforced the Second Step lessons with REDACTED. Finally, although Ms. CLINICIAN 1 opined that counseling sessions would have been beneficial for REDACTED in terms of reinforcing the Second Step skills, the Parents had declined these services. Ibid. at 278. Likewise, a psychological consult would have been beneficial, but this did not occur. November 30, 2022 Tr. at 302-303.

Once implemented, the BIP included the use of smiley faces in the form of a token economy. Smiley faces could be earned for compliance or withdrawn as a consequence for negative behaviors. The witness noted that REDACTED was highly motivated by her I-pad, but allowances were made to modify her rewards should the child so desire. In addition, a visual clip system was implemented. In this manner, the child could visually see the direction in which her clips were moving up or down, representing better or worse behavior. The witness testified that the charts were sent home daily and that a review of the data occurred at least once a month. Ibid at 255-256. In the event of a classroom crisis, personnel were to implement a sensory break, escort REDACTED to the occupational therapy room or call one of the psychologists.

Nevertheless, Ms. CLINICIAN 1 was only present in the elementary school until the end of the semester and was only able to observe the BIP’s implementation for approximately two months. The witness observed that while REDACTED had initially demonstrated some progress, the child became increasingly frustrated as academic demands escalated. As a result of her frustration, her dysfunctional behaviors intensified. November 29, 2022 Tr. at 257. She based her assessment of REDACTED’s progress upon the daily classroom behavior charts and IEP progress reports. A daily report was additionally furnished to the Parents. Ibid. a 275-276. The witness noted that the smiley face behavior chart had been used prior to the implementation of the BIP. As a result, she had continued this format as it had already been established and was familiar to personnel. November 30, 2022 Tr. at 330.

Ms. CLINICIAN 1 additionally testified as a member of the School’s crisis team. The witness is certified in therapeutic crisis intervention in schools (hereinafter “TCIS”). However, she did not recall responding to any calls related to REDACTED and had limited knowledge of these events. Ibid at 261. Ms. CLINICIAN 1, however, did observe REDACTED and her 1:1 paraprofessional on several occasions within the classroom. During these times, the witness noted that there was a positive relationship between the child and her aide. The aide frequently assisted REDACTED with her assignments, repeating instructions, redirecting REDACTED’s attention and facilitating transitions. Likewise, REDACTED frequently looked to her aide for support. In January 2022, Ms. CLINICIAN 1 began transitioning to the District’s middle school and spent progressively less time in the elementary building. Following her departure from the elementary school, Ms. CLINICIAN 1 no longer knew who would be managing REDACTED’s BIP.

CLINICIAN 5 additionally testified on behalf of the District. Ms. CLINICIAN 5 is a speech-language pathologist. Ms. CLINICIAN 5 holds a master’s degree in communication disorders and sciences. She is licensed as a speech and language pathologist in New York State and additionally maintains a clinical certificate of competency through the American Speech Language Association. She is presently REDACTED’s speech-language therapist and began working with her as of kindergarten. During REDACTED’s kindergarten year, Ms. CLINICIAN 5 utilized the goals reported by her preschool therapist. Although REDACTED initially demonstrated articulation issues, these were resolved. Instead, social language pragmatics and deficits in expressive/receptive speech were addressed.

Understanding that REDACTED carried a diagnosis of autism, Ms. CLINICIAN 5 knew REDACTED would have some difficulty, commensurate with her place along the spectrum, with pragmatic social language communication, the ability to initiate conversations, playing with peers and responding directly and appropriately to them. Ms. CLINICIAN 5 opined that REDACTED would have benefitted from counseling as this would furnish the child with opportunities to practice social stories. In collaboration with occupational therapy, Ms. CLINICIAN 5 indicated that she would address zones of regulation, encouraging REDACTED to use her words when frustrated. In this manner, intervention with REDACTED reflected the cooperation of several related service providers and teachers. Beyond her close work with the District’s occupational therapist, Ms. CLINICIAN 5 indicated that REDACTED’s teachers and providers met, on a daily basis, after school to discuss the students and their progress. November 30, 2022 Tr. at 396-397.

The witness described several classroom modifications which served REDACTED This included the use of visual schedules and pointing as alternatives to expressive language. Indeed, even the manner in which REDACTED was allowed to respond was altered. Eye contact was eliminated as a requirement for a response and pointing permitted. November 30, 2022 Tr. at 393-394,400. The use of sensory bins and zones of regulation were additionally incorporated into classroom management. Ms. CLINICIAN 5, moreover, testified that REDACTED was very responsive to music and, therefore, she utilized background music in her speech room as a calming force. November 30, 2022 Tr. at 414. Ultimately, a music therapy assessment was conducted at the joint request of the District and Parents. Exh. 63. Finally, the witness reported that when transitioning, a great deal of verbal, visual and even physical support was implemented.

As the year progressed, Ms. CLINICIAN 5 testified that REDACTED grew to rely “maximally” upon her 1:1 aide. REDACTED could not walk independently throughout the school or even just to the speech and language room. The child required close proximity with the aide who was constantly redirecting and repeating instructions. Beyond this, the aide facilitated REDACTED’s use of the visual schedule, warning her of future transitions and generally remaining with the child to ensure on-task performance and safety. Ibid. at 401-402.

Ms. CLINICIAN 5 participated in the April 12, 2022 CSE convene and prepared portions of the forthcoming IEP. Exh. 76. She additionally participated in the October 28, 2021 CSE convene but was minimally involved as the proceedings addressed the adoption of a BIP in addition to a recommendation for physical therapy. November 30, 2022 Tr. at 388-390; Exh. 77. The witness indicated that she had agreed with the BIP implementation plan and had observed some of REDACTED’s difficult management issues even within her 1:1 setting. While the child enjoyed coming to the speech room, leaving this setting was challenging. The witness utilized a number of techniques (i.e., a warning timer, “if-then” contingencies, reviewing and repeating the schedule of event, positive motivation with REDACTED’s i-Pad), but was not always successful. REDACTED demonstrated challenges with transitions and, even within the 1:1 speech paradigm, Ms. CLINICIAN 5 had needed to call the School’s crisis management team to facilitate the child’s safe return to the classroom. November 30, 2022 Tr. at 390-391.

In preparation for April 12, 2022 convene, Ms. CLINICIAN 5 administered two separate assessments in February 2022. Utilizing the Comprehensive Assessment of Spoken Language (hereinafter referenced as the “CASL”) as well as the Montgomery Assessment of Vocabulary Acquisition (hereinafter “MAVA”, measures of both receptive and expressive language were obtained. Exh. 76 at 3 (Bates 2001). The witness noted that REDACTED yielded similar scores on both the CASL and MAVA, reflecting low average verbal abilities for her age. Exh. 60. Beyond these formal measures, the witness indicated that she was present in the classroom on a daily basis and could observe/ assess the child informally.

Ms. CLINICIAN 5 additionally reviewed REDACTED’s progress toward her goals during the 2021-2022 school year. The witness indicated that her speech-language therapy was provided as a push-in service. Consequently, the child’s progress was easily quantified because the therapist was in the classroom, monitoring her behavior with a clipboard. With regard to developing positive social skills, the witness specifically observed that REDACTED had “yet to initiate play with peers” without adult prompting and support. While some children made overtures to the child, REDACTED was generally inconsistent with joining their activities, and would only do so with the encouragement of adults. Exh. 60 at 7 (Bates 3097); November 30, 2022 Tr. at 370-371, 373. Although artificial play situations were created in an effort to facilitate social interactions, REDACTED was largely disinterested in these settings. Rather, she preferred playing alone and would, at most, tolerate parallel play.

Notably, while the child exhibited positive social interchanges with her therapist on a 1:1 basis, she was unable to generalize these social skills to the classroom. Ms. CLINICIAN 5 concluded that REDACTED had made no progress toward this goal and, as a result, this goal was not continued in the April 12, 2022 IEP. Ibid. Instead, the April 12, 2022 IEP articulated a goal in which REDACTED would work cooperatively with peers in small group settings (i.e. sharing materials, turn taking, reciprocal game playing and allowing others to share different thoughts). Exh. 76 at 9 (Bates 2003). In this manner, REDACTED would have both a structured setting and the participation of her peers as a forum in which to practice social skills. November 30, 2022 Tr. at 375. She noted that this new goal was directed more toward tolerating a small group activity successfully, a less rigorous goal than the social initiation goal originally attempted. Ibid. Although the child’s pragmatic speech goal was discontinued on the April 12, 2022 IEP, a less rigorous auditory comprehension goal directed at following directions was substituted.

Significantly, Ms. CLINICIAN 5 additionally reviewed a second goal which had been formulated for the previous year. The therapist noted that REDACTED had achieved benchmark success in her ability to seek/respond to information/questions using visual cues. However, this goal was only achieved within the quiet setting of Ms. CLINICIAN 5’s speech room on a 1:1 basis and was not generalized. Ibid. at 377; Exh. 60 at 7 (Bates 3097).

Ultimately, within the classroom, Ms. CLINICIAN 5 opined that REDACTED had made “minimal to non-existent progress.” November 30, 2022 Tr. at 379. She noted that REDACTED had entered kindergarten with a significant age-appropriate fund of knowledge. To this end, the child had possessed a number of pre-reading and pre-academic skills. As a result, the child was comfortable with the materials presented. However, as the demands of kindergarten became more sophisticated, REDACTED was struggling with new information and engaging in avoidant behaviors, some of which were dangerous.

As time elapsed, Ms. CLINICIAN 5 testified that the child’s behavior was so dysfunctional that the use of 1:1 instruction as opposed to group sessions was maximized. The witness noted that she had even pushed into math class, sitting next to her and attempting to maintain focus. As the third and fourth quarters of the school year transpired, personnel were more concerned about safety than academics. The witness testified that REDACTED was simply unable to learn in the ICT classroom, notwithstanding the implementation of various environmental and academic accommodations. She stated, “Honestly, by the end of this school year . . . we used all the tools in our tool belt to try to make it successful in the classroom, but it was overwhelming, and she wasn’t making progress with learning the new skills.” While REDACTED was able to absorb materials in the context of 1:1 instruction, she was overwhelmed and stressed by the stimulation inherent within the ICT environment. November 30, 2022 Tr. at 380. In fact, even in small groups within the ICT classroom, REDACTED had limited success, if any. November 30, 2022 Tr. at 418. As a result, she concurred with the CSE”s recommendation for a 12:1:1 class for the upcoming school year. Ibid. at 397-398. Although REDACTED would continue to receive the services mandated on her IEP in the 12:1:1 setting, she would benefit from additional related services as providers are frequently seeing other students in that classroom throughout the day. She concluded, “There is more support from aides, assistants, related service providers who are built into that [12:1:1] program.” Ibid at 419.

Ms. CLINICIAN 4 is a licensed occupational therapist employed by the District and has been working with REDACTED since her 2021-2022 kindergarten year pursuant to a 3 (30 minute) day/ 6-day cycle. Exh. 78. She also provides push-in services during art. Ms. CLINICIAN 4 participated in the CSE convene held on April 12, 2022 but was not involved in REDACTED’s kindergarten 2021-2022 IEP. In preparation for this convene, Ms. CLINICIAN 4 conducted the Bruininks-Oseretsky Test of Motor Proficiency, a measure of fine motor coordination. The witness noted that REDACTED scored at the 1% level, well below average. Specifically, the child’s fine motor integration scaled score fell at 6 where normal range is within 9-11. Similarly, her fine motor precision yielded a scale score of 5. Formal testing yielded a fine-motor age equivalency consistent with age four. November 30, 2022 Tr. at 426.

Reviewing the extended year progress reports for 2021-2022, Ms. CLINICIAN 4 noted that REDACTED had made progress towards achieving many of her goals when performing them in a small group setting. This included grasping, managing writing implements and copying pre-writing shapes. As the year transpired, REDACTED was additionally working toward copying her name with a visual model and physical prompts but did not meet her goal due to letter reversals and reliance upon cues. Exh. 60 at 4 (Bates 3094). Similarly, REDACTED struggled with the precision piece of her therapy, a goal compromised by visual inattention and intermittent motivation. Ibid. at 5 (Bates 3095).

However, even with these deficits, REDACTED was able to follow a routine and comply with therapy demands in Ms. CLINICIAN 4’s room. November 30, 2022 Tr. at 447. As a result of REDACTED’s progress, increasingly rigorous occupational therapy goals were developed during the April 12, 2022 meeting. Specifically, Ms. CLINICIAN 4 incorporated visual motor goals designed to enhance the fine motor skills reflected in handwriting. November 30, 2022 Tr. at 435. In addition to these fine motor and visual motor goals, Ms. CLINICIAN 4 included a goal directed at facilitating transitions from a preferred task to a therapist directed task.

Although REDACTED had sensory breaks mandated in her IEP, the child’s ability to self-regulate and transition appropriately was compromising her ability to progress, both academically and in terms of the development of fine motor skills. Indeed, this represented a significant component of REDACTED’s struggles. In furtherance thereof, Ms. CLINICIAN 4 indicated that she had trialed utilizing visual schedules, verbal prompts and various sensory tools, in addition to a reward system. If REDACTED were to attend the 12:1:1 class at REDACTED Elementary School, Ms. CLINICIAN 4 noted that the sensory gym is located directly across from her classroom. REDACTED would have full access to all sensory equipment with which she is presently familiar. As a result, many sensory transitions would be smaller and managed more easily. Ibid. at 455.

As the year progressed, Ms. CLINICIAN 4 testified that she had developed the zones of regulation program for REDACTED This was utilized as an adjunct to the satellite sensory area (immediately outside REDACTED’s classroom) she had developed specifically for REDACTED. In furtherance thereof, Ms. CLINICIAN 4 additionally developed the “emotions sheet” and had copies available in REDACTED’s classroom, occupational therapy room, speech room and satellite sensory area. In this manner, REDACTED was encouraged to integrate her use of zones of regulation with her sensory diet, facilitating the child’s self-awareness, in terms of both emotions and sensory needs. Although the child had progressed during the year, Ms. CLINICIAN 4 also testified that progress had not always generalized to the larger classroom.

From September 1, 2021 to November 16, 2021, Ms. CLINICIAN 4 provided services pursuant to the July 28, 2021 IEP. On October 28, 2021 an IEP was drafted, including provisions for an FBA and BIP. cf Exhs. 77, 78. Once again, the visual schedule and sensory diet referenced previously in the child’s IEPs were formally mandated on the October 28, 2021 IEP. December 7, 2022 Tr. at 499. Although not all modifications had been specifically described in the child’s IEP, Ms. CLINICIAN 4 testified that personnel were already using visual schedules, a sensory diet, zones of regulation, emotion sheets, sensory breaks, physical prompting, flexible seating (a rocking chair), headphones and a satellite sensory gym next to REDACTED’s classroom. All of these interventions were meant to be proactive and to facilitate REDACTED’s ability to self-regulate. Ibid. at 501.

On April 12, 2022 an IEP was generated for the 2022-2023 school year. Ms. CLINICIAN 4 acknowledged, on cross-examination, that there was only one goal aimed at facilitating transitions for REDACTED but noted that personnel worked as a team and shared their strategies with each other within the classroom. Indeed, Ms. CLINICIAN 4 indicated that she had agreed with the April 12, 2022 recommendation for a 12:1:1 setting as she had not observed REDACTED make any progress in the ICT classroom. November 30, 2022 Tr. at 447. Although REDACTED had made progress within the small group therapy setting offered in her therapy room, Ms. CLINICIAN 4 observed that REDACTED struggled in larger settings, in part, because she required individualized and modified assignments. Ibid. at 439.

In larger less structured environments, Ms. CLINICIAN 4 testified that REDACTED had difficulty self-regulating and required ongoing access to a sensory diet including proprioceptive and vestibular input. Nevertheless, despite these interventions, the witness observed that on some occasions, the child’s dysfunctional behaviors led to her removal from the classroom. Only after she had been calmed down could REDACTED avail herself of a sensory diet. November 30, 2022 Tr. at 441. Eventually, the witness indicated that she had set up a small, modified satellite sensory “gym” outside REDACTED’s classroom as a supplement to the weighted lap pad, headphones and flexible seating offered to REDACTED within the classroom. Ibid. at 443. In this way, REDACTED would not need to walk through the halls to the larger sensory gym.

In summary, Ms. CLINICIAN 4 further testified that she agreed with the provisions, both class paradigm and occupational therapy mandate, in the April 12, 2022 IEP. Having observed REDACTED across several settings (1:1 therapy, small group intervention and ICT in both an academic class and art), the clinician noted that these settings additionally reflected a continuum of REDACTED’s ability to function appropriately in various settings. She observed that the child made significant progress in both the 1:1 setting and small group paradigm. However, referencing REDACTED’s inability to cope within the ICT class, the clinician testified , “. . . some days it was hard to watch.” December 7, 2022 Tr. at 506. Specifically, REDACTED was unable to self-regulate and did not possess the baseline attending skills inherent in absorbing academic instruction. She noted that there were many days in which REDACTED’s dysfunctional behavior consumed the entire academic day. December 7, 2022 Tr. at 506-507. When this occurred, REDACTED might be running around in or outside the classroom, pushing or throwing objects about the room and generally acting out. On occasion, REDACTED’s behaviors would precipitate the need for physical restraint or “putting hands on the child.” Ibid. at 514. Ms. CLINICIAN 4 testified that there were, in fact, occasions during which, REDACTED’s behavior had spiraled out of control, making it unsafe for herself and others, and further compelling an evacuation of the classroom. Ibid. at 508-509, 511-512.

TEACHER 2 is certified by New York State in special education, birth through grade 2. She is familiar with REDACTED, having worked with her as a SEIT during REDACTED’s 2020-2021 kindergarten school year. During the 2020-2021 school year, Ms. TEACHER 2 provided three (sixty minute) SEIT sessions per week to the child and was employed by REDACTED. In contrast, in her capacity as a special education classroom teacher, Ms. TEACHER 2 provided her services full-time within the context of an ICT, a classroom of 17 children, five of whom were classified. In addition, there were five adults in the room along with additional related service push-in providers.

In September 2021, despite the 12:1:1 recommendation in the June 3, 2021 IEP, REDACTED was eventually placed in an ICT class at the request of the Parents and the acquiescence of the District. Ms. TEACHER 2 noted, however, that the larger ICT classroom had overwhelmed REDACTED. The witness observed that the ICT class seemed to be a “huge trigger” for her and appeared to be very overstimulating. In this setting, Ms. TEACHER 2 testified that the child’s on-task performance was significantly limited, compromising REDACTED’s ability to retain information or comply with demands. Ibid. at 540. In contrast, Ms. TEACHER 2 had worked with the child in small group settings during reading and math, as well as during classroom activities which required a more intimate pupil: personnel ratio. During these times, Ms. TEACHER 2 noted that REDACTED was more responsive to academic and behavioral demands within this context, although even in some small group settings, there were frequently too many children. Ibid. at 541-542. Beyond the issue of over-stimulation, Ms. TEACHER 2 noted that the frequent transitions within her ICT class appeared to precipitate REDACTED’s dysregulation. Consequently, Ms. TEACHER 2 opined that the 12:1:1 setting would serve REDACTED more meaningfully as transitions were minimized in this format.

Referencing the progress notes for REDACTED during the 2021-2022 school year, Ms. TEACHER 2 testified that she had prepared several goals for the child. These included developing skills in completing multi-step directions, participating in small social groups, transitioning between activities, following safety rules and becoming fully potty-trained. Exh. 60 at 1-2 (Bates 3091-3092). Based upon her observations of REDACTED, the witness noted that REDACTED demonstrated progress during the first quarter of the school year. However, as the year proceeded, REDACTED’s progress was negligible. December 7, 2022 Tr. at 524-525, 537. In response, Ms. TEACHER 2 implemented the use of a visual schedule, increased prompting, peer models, presenting materials to REDACTED in small groups of no more than two students and “front-loading,” timers and environmental accommodations to alert REDACTED to upcoming transitions.^[7] The witness noted that she and the 1:1 paraprofessional additionally collaborated daily. However, notwithstanding these measures, REDACTED’s progress remained stagnant, as demonstrated through both observational and daily log data. December 7, 2022 Tr. at 524-529, 535; Exh. 72, passim. On cross-examination, Ms. TEACHER 2 acknowledged that despite observing the child’s lack of progress over several quarters, she had not downgraded REDACTED’s goals, a measure she did not believe would serve REDACTED Ibid. at 566-567. Ibid. at 580.

Most importantly, REDACTED did not meet her safety goal and her dysfunctional behaviors were only getting worse. REDACTED began the school year settled at her designated seat/spot for approximately half of the classroom time. The remainder of her time was spent wandering about the room. As the year progressed and REDACTED’s level of frustration increased, the child began to flee from both the classroom and playground. By the third quarter, REDACTED’s elopement had escalated dramatically. Ibid. at 531-533. Ms. TEACHER 2 opined that REDACTED appeared very agitated and overstimulated in the room. When challenged by difficult materials, she would attempt to run from the room.

As REDACTED’s behavior management issues intensified, Ms. TEACHER 2 developed a daily log sheet, reflecting the day in incremental periods. A simple score was developed with the use of smiley faces ^[8] along with a comments section. This sheet constituted a daily record of the child’s status in the classroom and was sent home daily. Although it was always signed by the Parents, Ms. TEACHER 2 noted that they had not asked any questions or reached out about the content.

On April 12, 2022 Ms. TEACHER 2 participated in a CSE addressing the upcoming first grade 2022-2023 school year. At this time, the witness presented her progress report and opined that the ICT class was inappropriate for REDACTED. Although REDACTED had entered kindergarten with a sizable fund of basic knowledge, she had difficulty attending to materials in large groups. Consequently, when presented with new materials, the child struggled to both retain and apply the information presented. December 7, 2022 Tr. at 536-537. While she did, in fact, have basic pre-reading skills, REDACTED was unable to proceed to the next step, to wit: sounding out CVC^[9] words or using numbers to complete math problems. As a result, new goals were developed for REDACTED, focusing on and reinforcing REDACTED’s ability to apply phonics, decode, write and count.

Ms. TEACHER 2 testified that she agreed with the 12:1:1 recommendation generated at the April 12, 2022 proceedings and had, in fact, made this same recommendation as early as REDACTED’s convene on May 6, 2021. December 7, 2022 Tr. at 51; Exh. 80. She testified that, even at this time in preschool, REDACTED required a great deal of additional support to remain seated, participate in group activities and transition. In fact, Ms. TEACHER 2 had anticipated that matters would only be aggravated in kindergarten as academic demands became more sophisticated. Despite the fact that REDACTED was provided with 1:1 support at all times of the day, the child continued to require intense supervision for all components of the school day. December 7, 2022 Tr. at 553-555. While Ms. TEACHER 2 believed that the child was capable of making meaningful academic strides, this was only demonstrated in small groups or during 1:1 instruction. Indeed, Ms. TEACHER 2 testified that, “within the room I don’t think she was able to show us her true academic levels . . . for a perfect example, is [sic], she did have an injury in the spring and during that time there was – she spent more time one-on-one with us because she couldn’t participate in gym. And during that time, it always amazed us how she could handle our directions and being able to stay on task when it was a much quieter setting.” Ibid. at 555. The witness concluded, “ . . . it gave us the glimpse that there was potential for more academic gain than we were - -than she was able to show us.” Ibid. at 556.

Ms. TEACHER 2 additionally completed the BASC questionnaire regarding REDACTED in preparation for the development of an FBA. She did so, collaboratively, with REDACTED CLINICIAN 1, REDACTED’s occupational therapist, observing that the classroom teachers had initiated the request for an FBA. By now, the child’s classroom management issues had escalated dramatically, and personnel were concerned about REDACTED’s ability to function appropriately and safely in the classroom. Specifically, REDACTED was frequently off-task, engaged in negative behaviors or minimally attentive in her classroom. As a result of adopting a BIP for REDACTED, several different forms of data were maintained. This included the individualized smiley face chart, REDACTED’s daily chart that was sent home and a classroom management “clip” chart in which all students participated. December 7, 2022 Tr. at 547. She noted that REDACTED’s paraprofessional was trained to collect the data. However, as the child’s needs vacillated, staff members had a limited ability to modify the BIP as the School did not have the support of a psychologist/counselor to review and modify the FBA and BIP. Ibid. at 548.

Finally, Ms. TEACHER 2 described the circumstances in which either the crisis team would be called or the classroom would be evacuated. This had occurred approximately three times in the previous year. December 7, 2022 Tr. at 582-583. The witness testified that the primary criteria for this action was the safety of all children involved. Specifically, when de-escalation techniques were unsuccessful, the crisis team would be notified. Of utmost concern was REDACTED’s placing her hands around other children’s necks, throwing pencils, fidgets and other objects about the room; running/screaming wildly in the classroom and fleeing into hallways. She further noted that the child had injured personnel on at least six occasions over the year and the room had been evacuated approximately three times in the previous year. Ibid.

CLINICIAN 6 additionally testified on behalf of the District. Ms. CLINICIAN 6 is a school psychologist. Her testimony pertained to events following the April 12, 2022 IEP. This included an evaluation which commenced on September 2022 and continued through October 4, 2022, well after the April 12, 2022 CSE convene. Exch. 65.

Ms. CLINICIAN 6 is assigned to the REDACTED School, the host school for the 12:1:1 classroom to which REDACTED was assigned during the 2022-2023 school year. Ms. CLINICIAN 6 provided information regarding the proposed placement and the availability of services for the child, had REDACTED attended. Specifically, she observed that there are currently nine children in 12:1:1 classroom, a paradigm enriched by the presence of three student aides in addition to the lead special educator and the teaching assistant. December 7, 2022 Tr. at 606. Of the nine children enrolled, only three are on the autism spectrum. Having conducted an evaluation of REDACTED in October 2022, Ms. CLINICIAN 6 noted that REDACTED’s cognitive abilities generally fell in the middle of the proposed classroom profile. She, observed, moreover that mainstream academic classes were available in various content areas, should REDACTED’s skills accelerate in the 12:1:1 setting.^[10] While the frequency of transition is minimized within the 12:1:1 setting, students who do struggle with transitions are provided with opportunities to practice appropriate transition behaviors. This practice occurs without compromising the student’s classroom presence. Ibid. at 608. The witness indicated that she had reviewed the prior educational evaluation from preschool and agreed with its recommendations. December 7, 2022 Tr. at 615: Exh. 49, passim.

TEACHER 3 additionally testified on behalf of the District. Ms. TEACHER 3 is a general education teacher assigned to an ICT kindergarten classroom. The witness is certified to teach elementary and special education from birth to sixth grade. In this position, Ms. TEACHER 3 indicated that she is responsible for developing the mainstream curriculum and providing whole class instruction; her special education co-teacher accommodates those learners with special needs in a small group setting. She is familiar with REDACTED, having been her general education kindergarten teacher during the 2021-2022 school year. Ms. TEACHER 3 opined that REDACTED had made some progress at the beginning of the school year but had deteriorated as the year progressed. She based her conclusions about Ms. TEACHER 2s’s progress notes, daily conversations between them, joint planning time and her own observations. December 14, 2022 Tr. at 661-662.

As early as October 5, 2021, Ms. TEACHER 3 noted that REDACTED’s classroom management issues were significant, requiring daily communications with school psychologist CLINICIAN 2. These occurrences were shared with the Parents via daily communication logs, progress charts, emails and parent meetings. December 14, 2022 Tr. at 666, Exh. 54 at 15-16 (Bates 3036-3037). By February 15, 2022, Ms. TEACHER 3 reported that District personnel had again communicated with the Parents reiterating REDACTED’s need for a smaller class environment. Once more, personnel discussed the benefits of a 12:1:1 class and offered the Parents an opportunity to speak with the 12:1:1 teacher and observe that paradigm. December 14, 2022 Tr. at 696. Indeed, REDACTED’s fundamental base of knowledge had served her well at the beginning of the school year. However, as the rote memorization phase of learning had tapered off, REDACTED was struggling to apply that information abstractly, a fact Ms. TEACHER 3 attributed to the child’s fleeting attention.

Although Ms. TEACHER 3 participated in the April 12, 2022 convene, she noted that it is not her responsibility as the general education teacher to prepare segments of the IEP. However, she is able to participate indirectly through providing classroom observations and results of weekly monitoring and standardized test results.^[11] December 14, 2022 Tr. at 637-638; Exh. 59, passim. The witness additionally noted that she reviewed the child’s smiley log on a daily basis as a means of discerning behavioral patterns which could be addressed.

Ultimately, the witness testified that she had agreed with the 12:1:1 recommendation, believing it would provide REDACTED with all the support she required. This included a quieter, less stimulating environment with fewer transitions, enhanced push-in services and a more intimate pupil: personnel ratio. Ms. TEACHER 3 observed that as academic material became more sophisticated and classroom demands increased, REDACTED’s escape behavior and frustration had accelerated. In furtherance thereof, the witness testified that REDACTED was often unsafe in the classroom and overwhelmed by the environment. Ibid. at 638. Beyond this, the frequent transitions inherent in the ICT class were agitating for REDACTED For example, REDACTED’s ability to participate in whole class math and reading instruction was tenuous, at best. When she did participate, Ms. TEACHER 3 testified that she did not focus upon the instruction, frequently speaking non-contextually and requiring repetition. December 14, 2022 Tr. at 649-650. Ms. TEACHER 3 testified, “ . . . oftentimes she was not able to participate in those whole group lessons because of a combination of her attentiveness and focus and because of her [in]ability to stay in control of her body.” Ibid. Although whole class instruction was challenging for the child, Ms. TEACHER 3 testified that even small group instruction^[12] – if it occurred within the larger classroom – was still difficult for the child.

Ms. TEACHER 3 noted that REDACTED engaged in a range of unsafe behaviors which occurred nearly daily on multiple occasions. December 14, 2022 Tr. at 640. When overwhelmed or frustrated, Ms. TEACHER 3 observed that REDACTED’s response was to hit or kick. At times REDACTED would propel items (pencils, fidgets etc.) across the room, grab another student by the neck or arch her body backwards off the chair. December 14, 2022 Tr. at 653-654. She noted that personnel were frequently afraid REDACTED would strike her head on the floor. On several occasions, the child either kicked her peers or adults in the room. It was not uncommon for REDACTED to race about the classroom, hide under the desk or flee from the room. Although Ms. TEACHER 3 testified that REDACTED’s dysfunctional behaviors were a near daily occurrence, physical aggression with an adult now occurred at least three times a week. Ibid. at 639-642. While REDACTED had several levels of support within the classroom, Ms. TEACHER 3 testified that personnel were often afraid for REDACTED, her peers and themselves. When REDACTED was unresponsive to calming techniques, deep breathing, breaks, sensory input, fidgets, flexible seating and her BIP, the School’s therapeutic crisis intervention team was alerted and the classroom evacuated. This had occurred approximately three times during the year. However, the witness indicated that this was not something she would necessarily report to the Parents as her report did not address other children in the classroom. Rather, Ms. TEACHER 3 focused on REDACTED’s unsafe behavior. Ibid. at 684.

On or about October 18, 2021 Ms. TEACHER 3 completed a BASC-3 teacher questionnaire in preparation for the development of an FBA/BIP. Exh. 83. Ms. TEACHER 3 opined that a BIP would be advantageous for REDACTED and agreed with the October 28, 2021 recommendation that a BIP be implemented. Thereafter, Ms. TEACHER 3 testified that REDACTED’s educational team would meet as needed. As time elapsed, however, it became apparent that the one issue primarily addressed by the FBA/BIP, to wit: following directions, did not improve. December 14, 2022 Tr. at 682. On many occasions, REDACTED’s difficulty following directions and related behaviors, exceeded both her ability and Ms. TEACHER 2’s ability to control REDACTED’s behavior and Ms. TEACHER 3 estimated that she had called the crisis team approximately 20 times during the year. Ibid. at 683.

On cross-examination, Ms. TEACHER 3 acknowledged that there was no provision for Parent counseling in the April 12, 2022 IEP. December 14, 2022 Tr. at 672. Moreover, although the witness recalled a discussion about REDACTED’s positive response to music, a Music Therapy Assessment was not completed until October 4, 2022, and it would appear that the referral was not made until the beginning of the 2022-2023 school year. Significantly, by this time, the Parents had developed an understanding of the value of group counseling and physical therapy for their child. Nevertheless, they continued to object to these services, seeking instead to maximize the amount of time REDACTED spent in the classroom. Exh 76 at 17 (Bates 1058).

ADMINISTRATOR 2 additionally testified on behalf of the District. Ms. ADMINISTRATOR 2 is a reading specialist who is employed by the REDACTED County Health Department as a children’s services program specialist. In this capacity, Ms. ADMINISTRATOR 2 serves as a liaison for all eight school districts within REDACTED County. While it is the County’s responsibility to provide preschool services, Ms. ADMINISTRATOR 2 additionally functions as a CPSE committee member, interfacing with districts by participating in educational planning meetings and making decisions regarding preschool special education services. December 15, 2022 Tr. at 815-817, 828. As the County’s liaison with its various school districts, Ms. ADMINISTRATOR 2 serves as both a CPSE member and County representative.

Once eligibility is established, the witness works collaboratively with preschool providers to furnish the appropriate and recommended services. Specifically, she noted that the Department of Health is responsible for contracting with providers, securing services from both agencies and individuals. She testified that “it is the County’s responsibility to provide services in the preschool world.” Ibid. at 820. Services are billed by the providers to the County and the County subsequently issues direct payment to the providers. The witness testified that she was unaware that REDACTED was ever placed on a wait list for services.

During the 2020-2021 school year, Ms. ADMINISTRATOR 2 noted that REDACTED was a four-year-old receiving universal pre-K services at the District’s elementary school. From December 7, 2020 to February 1, 2021, the school switched to remote instruction. The witness testified that she believed REDACTED had continued receiving SEIT services during this time, but did not receive occupational and speech therapy, although these interventions had been offered via teletherapy. Ibid. at 824. Ms. ADMINISTRATOR 2 testified that she was uncertain as to why REDACTED had not received all of her mandated services.

On April 21, 2020, Ms. ADMINISTRATOR 2 was present for a CPSE meeting regarding REDACTED. At that time, an extended school year was recommended based upon REDACTED’s cognitive scores and the likelihood of regression. The witness testified that providers had been assigned to the child and arrangements for invoicing made, but it did not appear that REDACTED had attended any therapy sessions. The witness stated that this had never been brought to her attention, a situation which is not uncommon for her. She testified, “Unless a provider is just – is not able to contact the family in that first week, I don’t usually hear whether a service is occurring in the summer or not. . . “ Ibid. at 826.

The witness clarified the relationships between the Department of Health and the school districts. She noted specifically that, “Local school districts guide families through the program while REDACTED County and the New York State Education Department pay for the cost of the educational services. “ Ibid. at 835. In this manner, the parent’s first and immediate contact may be directly with the CPSE. When there are problems with the receipt of services, parents may contact the Department of Health or the school district. Contact information is shared with the parents at the initial CPSE meeting. However, the witness acknowledged that parents most frequently contact their school district when there are problems. December 15, 2022 Tr. at 839. While Ms. ADMINISTRATOR 2 observed that parents are advised at the outset that providers cannot always be identified or secured for them, these services can be furnished at a later date in the form of compensatory education. Ibid. at 839-840. The witness acknowledged that due to the rural nature of their community, it is not always feasible to identify related service providers. While Parents may be directed to SUNY at Plattsburg for services, those services will not be reimbursed by the County.

The Parents’ Case and Summary of Witness Testimony

CLINICIAN, Ph.D. testified as lead witness on behalf of the Parents. Mr. CLINICIAN 7 is the project director of the REDACTED^[13] in REDACTED, New York. He also serves as the autism intervention program coordinator at the State University of New York at REDACTED. Dr. CLINICIAN 7 is licensed by New York State as a behavior analyst and additionally holds a BACB from the Behavioral Analyst Certification Board. He is additionally certified as a BCBA. December 15, 20232 Tr. at 30; Exh. C at 1. Much of his clinical work is performed within schools, training teachers and related personnel to work with the autistic population, utilizing the principles applied behavioral analysis (hereinafter referenced as “ABA”). The witness testified as a behavioral expert with specific expertise in autism, BIPs and FBAs. Some of his work has involved interfacing with school districts and providing training.

Dr. CLINICIAN 7 described the FBA as the first step in learning how the environment is precipitating dysfunctional behaviors. Once this is understood, these causative antecedent events can be addressed by the BIP. Thus, the witness noted that the FBA is a process in which the environment is tested to determine what specific demands will evoke challenging behavior. Upon identifying a functional trigger for negative behaviors, a BIP with replacement behaviors, appropriate reactive strategies and extinction goals can be developed.

Dr. CLINICIAN 7 noted that reactive strategies often reflect behavior that is inadvertently being reinforced in the environment. When this occurs, the witness indicated that it is important to sever the connection between the challenging behavior and that aspect in the environment which is reinforcing its continued existence. December 15, 2022 Tr. at 742-744. The witness specified that if escape from unpleasant demands was the function of challenging behavior, the triggering demand (academic or otherwise) must remain. To do otherwise would simply reinforce the child’s negative behaviors by removing the aversive activity. By maintaining the aversive activity, REDACTED, would soon learn that her dysfunctional classroom behaviors are not achieving the escape goal she seeks, thereby extinguishing the negative behavior. Ibid. at 770-771. Eventually, when the replacement behavior is established securely, the aversive activity is gradually reintroduced through “schedule thinning” or fading the challenging behavior back in. December 15, 2022 Tr. at 805. Dr. CLINICIAN 7 testified that it is critical to maintain the adverse demand rather than reward the child by removing the demand with successful negative escape behaviors.

The witness reviewed the District’s FBA and BIP, along with the daily notes for REDACTED, prior IEPs, records from REDACTED Pediatrics and a developmental report. He noted that once a BIP is developed, everyone who works with that child, including the parents, must be trained in both its implementation and data collection. In this manner, the procedural integrity of the BIP is maintained. Once the BIP is in effect, the witness opined that it requires continuous monitoring on a one to biweekly basis.

Dr. CLINICIAN 7 focused his attention on the validity of the District’s FBA and BIP. In furtherance thereof, Dr. CLINICIAN 7 noted that the school’s FBA had identified seven challenging behaviors^[14] but did not define them specifically. Exh. 57 at 1 (Bates 3053). Based upon his review, Dr. CLINICIAN 7 testified that the FBA did not reference any specific tools which had been used for assessing and defining REDACTED’s negative behaviors. In furtherance thereof, he testified that these evaluation tools fell into two categories reflecting direct (interviews) and indirect input in the form of scatterplots, ABC narrative recording and ABC continuous recording.

In defining negative behaviors, Dr. CLINICIAN 7 referred to the “topography “of a behavior, to wit: a physical description delineating the exact nature of the challenging actions in question. As the child’s behaviors were not specifically described in the District’s FBA, he believed various individuals working with this document might define these behaviors differently. Moreover, he noted specifically that the use of the BASC-3 is not an appropriate method for performing a functional behavior assessment. December 15, 2022 Tr. at 764-765. He did acknowledge, however, that teacher observations, interviews and a record review were appropriate evaluative measures.

Dr. CLINICIAN 7 testified that, although the FBA references a range of negative behaviors, it does not provide insight into what is fueling these behaviors. As such, the FBA/BIP cannot remediate REDACTED’s issues. Simply stated, there is no evidence that the BIP provides any strategy for teaching new skills, preventing behaviors, offering replacement behaviors, furnishing positive reinforcement or providing consequences of non-compliance. Thus, Dr. CLINICIAN 7 opined that where both target behaviors and treating consequences are poorly defined, it is likely the negative behavior will continue. Ibid. at 767. In sum, Dr. CLINICIAN 7 testified that REDACTED did not receive any effective intervention to reduce her challenging behaviors. Ibid. at 771.

Moreover, in the event that positive changes were observed, Dr. CLINICIAN 7 testified that the District’s BIP/FBA did not have a data collection protocol and, therefore, it would be difficult to ascertain the efficacy of the District’s efforts. He did not consider the daily smiley face behavior chart a valid form of data collection and noted that the subjective clinical descriptions of REDACTED’s behavior did not constitute quantitative information. As a result, one could not discern any patterns of improvement or regression in any specific manner over the course of time. December 15, 2022 Tr. at 780-781. Although the witness acknowledged that the smiley face chart provided anecdotal information, he testified that this form of clinical observation is notoriously unreliable. Ibid. at 783. He believed reliance upon this information would only lead to poor treatment decisions.

Having poorly described the target behavior and utilizing a subjective form of measurement, Dr. CLINICIAN 7 noted that the District’s plan did not include a key element in REDACTED’s BIP. Specifically, the FBA/BIP should have furnished a specific protocol for “fading in a non-preferred activity (i.e. transitions, doing academic work etc.). This would be achieved with prevention strategies such as warning alarms, picture schedules and verbal cues to prepare the child for the upcoming aversive activity. The child should then be offered a replacement behavior such as communicating the need for a break. By establishing a fluent replacement behavior at the “expense” of the negative behavior, the negative behavior will eventually be extinguished.

On cross-examination, Dr. CLINICIAN 7 acknowledged that the three smiley faces (happy, sad and neutral) could be assigned a numeric value and thus quantified. Nevertheless, he observed that this would not address the specifics of REDACTED’s seven targeted behaviors. Rather, each behavior would require its own data.

REDACTED is the mother of REDACTED. She provided a brief history of her daughter’s educational background, noting that from an early age, REDACTED’s eye contact was not consistent, and the child exhibited sensory issues. As a result of their concerns, the T.’s spoke with their pediatrician and were referred to CLINICIAN 8 for early intervention evaluations. Thereafter, REDACTED was deemed eligible for services and began receiving support at age two.

In May 2019, a preschool evaluation of REDACTED was conducted by REDACTED in preparation for receiving preschool services through the CPSE. Exh. 49. At this time, various related services were recommended. In addition, the evaluator noted that REDACTED would benefit from a “structured learning environment that would be [more] restrictive than her current setting in order to provide more intensive services and exposure to same age peers.” Exh. 49 at 9 (Bates 3007). Thereafter, REDACTED was referred to a developmental pediatrician at REDACTED Developmental Pediatrics. On July 18, 2019, REDACTED was seen at REDACTED and diagnosed on the autism spectrum. December 15, 2022 Tr. at 854; Exh. 55 at 18; (Bates 3084). Additional testing was performed and REDACTED was again recommended for preschool services, specifically a center-based integrated preschool experience. At this time, additional parental peer supports, and education were recommended for the Parents.

In the spring of 2020, REDACTED participated in a CPSE convene for REDACTED Exh. 81. During these proceedings, REDACTED testified that the REDACTED developmental report was reviewed along with its recommendations for a center-based program. Instead, that fall, REDACTED attended a mainstream universal prekindergarten (hereinafter “UPK”) in District with 1:1 SEIT push-in services by REDACTED TEACHER 1 and REDACTED TEACHER 2. By the close of day one, however, REDACTED was advised that REDACTED was not ready for UPK and should remain home for another year with home-based services. Alternatively, if REDACTED were to remain in this general education setting, Ms. TEACHER 4, the child’s mainstream teacher believed a 1:1 paraprofessional was indicated. Although the Parent testified that she brought these concerns to the CSE Chairperson, ADMINISTRATOR 3, ultimately a dedicated paraprofessional was not assigned. The Parent testified that the referral to the County did not proceed as the child’s two SEIT providers believed REDACTED did not need this support. December 15, 2022 Tr. at 867-868, 870-871.

On May 6, 2021, a CPSE meeting was held in which extended year services were endorsed. December 15, 2022 Tr. at 877; Exh. 80. This was followed by a second CSE meeting on June 3, 2021 to discuss plans for REDACTED’s upcoming kindergarten year. Exh. 79. At this meeting, the Parent recalled discussing an educational evaluation, occupation therapy evaluation, a speech evaluation and a psychoeducational evaluation. Ms. REDACTED did not recall completing any social history questionnaire. REDACTED testified that the REDACTED records were not discussed although they had previously been provided. At this time, the CSE recommended a 12:1:1 placement to which the Parents disagreed. REDACTED testified, “REDACTED needs to be around typical peer models and we felt strongly that being in an – in a classroom environment with nothing but special needs children would be detrimental to her, and we – didn’t feel like that was an appropriate place for REDACTED” Ibid. at 881. The witness noted that while there had been discussions of a less restrictive ICT environment, a setting supported by REDACTED, the District did not have an ICT class at that time. As a result, a 12:1:1 placement was mandated. Although speech was again recommended for the child, the Parents declined these services as, “REDACTED‘s reciprocative [sic] speech was very limited and REDACTED has never experienced any . . . traumatizing times.” December 15, 2022 Tr. at 882. Beyond this view of school counseling, REDACTED testified that no one had explained the value of this service for children on the spectrum. Ibid. at 883, 885-886. Finally, the Parent testified that although the IEP recommended a host of behavioral supports to address REDACTED challenging behaviors, a BIP was not recommended. Ultimately, on July 22, 2021, the Parent executed a consent for an FBA/BIP. Ibid. at 884; Exh. 79 at 8 (Bates 2029).

Following the June 3, 2021 CSE, REDACTED was again seen by REDACTED on July 7, 2021. Exh. 55 at 2 (Bates 3067). At this time, CLINICIAN 10, REDACTED performed the Holbrook Preschool Earl Reading Assessment Battery to evaluate the child’s basic pragmatic language, visual-spatial capability, early concepts of mathematics and general knowledge base. The examiner concluded that REDACTED would be an “excellent candidate” for an ICT class “with robust supports,” Alternatively, nurse CLINICIAN 10 opined that a general education class would also serve REDACTED well, assuming appropriate supports. December 29, 2022 Tr. at 900. Exh. 55 at 2 (Bates 3068).^[15]

In July 2021, the CSE developed a new ICT class and the parties agreed to assign REDACTED to this setting. The child began the 2021-2022 school year in this placement and, at a review in October, personnel provided REDACTED with a generally positive report regarding REDACTED’s ability to function within this paradigm. December 29, 2022 Tr. at 911. Shortly thereafter, Ms. CLINICIAN 1 and other team members commenced the FBA process and a BIP was developed. The Parent testified that she received daily reports from REDACTED’s teacher and paraprofessional daily and was never advised -at this point- that the crisis team had been called or that the classroom had to be evacuated. December 29, 2022 Tr. at 913-914. In fact, based upon the daily reports and conversations with REDACTED’s paraprofessional, Ms. REDACTED believed REDACTED was having more good days than bad. The Parent noted that she has never observed the child in her academic setting, nor has she been invited.

On February 15, 2022, REDACTED met with Ms. TEACHER 2 and Ms. TEACHER 3 to discuss REDACTED’s progress. At this time, both teachers advised the Parent that the child was struggling in her current placement. They noted that REDACTED was successful in the 1:1 and small group paradigm and, consequently, they were again recommending a 12:1:1 placement for the upcoming year. Thereafter, the Parent testified that she began receiving reports that the crisis team had been called. December 29. 2022 at 918.

In April 2022, the Parent again participated in a CSE convene to prepare for the 2022-2023 school year. The CSE team again recommended the 12:1:1 placement along with related services and the Parent again disagreed with the IEP. Thereafter, REDACTED was seen by REDACTED for an evaluation of a possible ADHD diagnosis as the Parent, herself, testified that she had observed evidence of REDACTED’s distractibility and inability to remain seated. Ibid. at 927-928. On August 16, 2022, the Parents received an abbreviated report from REDACTED which they brought to the District immediately in preparation for a scheduled mediation. Exh. 55 at 19 (Bates 3085). Once again, this report recommended a mainstream education or an ICT class with related services. In furtherance thereof, the District responded with various concerns about the report indicating that they would need further information from REDACTED in order to proceed with the District’s triennial report. Exh. B at 5. On August 17, 2022, the Parent testified that she executed a consent. Exh. 86.

On cross-examination, the Parent acknowledged that, other than the initial letter from REDACTED confirming REDACTED’s diagnosis of autism, they had furnished no other records until August 2022. December 29, 2022 Tr. at 944. Although the December 3, 2020 REDACTED note recommended the use of ABA services in the home and furnished guidance as to locating a provider, REDACTED admitted that, other than her pediatrician, she had not followed up on this. Rather, she testified that there were no ABA therapists in her community. December 29, 2022 Tr. at 950-952. Finally, although the purpose of counseling was discussed during the June 3, 2021 CSE, REDACTED indicated that her husband had not shared this information. Ibid. at 952-953. Finally, REDACTED testified that with respect to REDACTED’s assessments, “the majority of tests -- I can’t -- maybe early on they did, but for the most part we all sat in the room together and there were times where I would fill out . . . a parent questionnaire where they would be working with REDACTED while I was doing that.” December 29, 2022 Tr. at 954-955.

The School District’s Position

The School District maintains that the District’s placements afforded REDACTED a FAPE and that the IEPs of April 21, 2020; May 6, 2021; June 3, 2021; July 28, 2021 and April 12, 2022 are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8 N.Y.C.R.R. §200.6 §(a)(1). Exhs. 76, 78-82. Specifically, the District asserts that the student was duly furnished with FAPE during the 2020-2021, 2021-2022 and 2022-2023 school years. Inherent within this position, the School District asserts that the IDEA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits.

Thus, compliance with its IDEA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]) and in “light of that child’s circumstances.” Endrew F. v. Douglas Cty Sch. Dist. Re-1, 137 S. Ct. 988 (2017).

Specifically, and with reference to the 2020-2021 preschool year, the District acknowledges that REDACTED did not receive her mandated services. However, it is the District’s position that it is the County’s responsibility to furnish and administer related services at the preschool level. Consequently, the District maintains that the Parent’s claim has been directed to the wrong party.

Secondly, counsel maintains that the 12:1:1 classroom paradigm recommended during the 2022-2023 school year comports with its obligation to furnish REDACTED with a placement in the least restrictive environment. It is not, therefore, compelled to place REDACTED in an ICT or mainstream class which it deems inappropriate.

The Parents’ Position

The Parents assert that the School District stands in abrogation of its duty to provide REDACTED with a free and appropriate public education for the 2020-2021, 2021-2022 and 2022-2023 school years in violation of the IDEA See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). Beyond this, counsel maintains that the IEPs generated between April 21, 2020 and April 12, 2022 reflect a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the documents. Exhs. 76, 78-82. Lastly, the Parents have asserted a Child Find claim. The Parents, therefore, seek compensatory education and a host of additional services and referrals for social skills training, music therapy and ABA expertise.

Consistent with their argument, the Parents contend that there are no equitable factors which, pursuant to School Committee of the Town of Burlington v. School District, Massachusetts, 471 U.S. 359 [1985], militate against an award of reimbursement (M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16).

Discussion

It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2^nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].

In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).

In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" (B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New YorkCity Dep't of Educ.,No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P.,62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).

Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only retrospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result");J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y. 2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ.,584 F.3d 412, 420 [2d Cir. 2009]).

Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; REDACTED v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93).

Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert.denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).

Point I: Consistent with Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982],was the April 21, 2020 reasonably calculated to confer an educational benefit upon REDACTED during the 2020-2021 school year?

Failure to comply with the District’s IDEA Child Find Mandate

While the Parent maintains that the District failed to comply with its Child Find mandate, this is, in fact, erroneous. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). The child has been classified since at least June 17, 2019 as a Preschool Child with a Disability. Exh. 82. While she has not always received her mandated services, this is separate and distinct from the District’s classification of the child. Moreover, any claim for the 2019-2020 school year must be denied as it is untimely and beyond the two-year statute of limitations. See 8 NYCRR § 200(5J)(1)1i). Consequently, I find that this claim must be denied in its entirety.

Sufficiency of Evaluations

Federal regulation requires that an IEP include a statement of the student's present levels of educational performance, including a description of how the student's disability affects his or her progress in the general curriculum (34 C.F.R. § 300.347[a][1]; see also 8 NYCRR 200.4[d][2][i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student's present levels of performance and areas of need (34 C.F.R. Part 300, Appendix A, Section 1, Question 1).

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental, and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). It is well settled that a CSE must consider privately obtained evaluations, provided that such evaluations meet the district's criteria, in any decision made with respect to the provision of a FAPE to a student (34 CFR 300.502[c]; 8 NYCRR 200.5[g][1][vi]). However, "consideration" does not require substantive discussion, that every member of the CSE read the document, or that the CSE accord the private evaluation any particular weight (T.S. v. Bd. of Educ. of the Town of Ridgefield, 10 F.3d 87, 89-90 [2d Cir. 1993]; G.D. v. Westmoreland Sch. Dist., 930 F.2d 942, 947 [1st Cir. 1991]; but see A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017] [finding that recommendations included in private evaluation created a consensus as to what the student required where the district did not conduct any evaluations of its own to call into question the opinions and recommendations contained in the private evaluations]).

On April 21, 2020, the CPSE convened to develop a preschool IEP for REDACTED. It based its recommendations upon the May 16, 2019 Battelle Developmental Inventory, the March 11, 2020 Peabody Developmental Motor Scales and a March 10, 2020 Preschool Language Scale. The parties were, additionally, in possession of a developmental evaluation report from REDACTED dated October 23, 2019 and a CLINICIAN 9 psychoeducational evaluation from May 2019. Exhs. 49, 55 at 8 (Bates 3074), 81 at 4 (Bates 2081). The IEP further indicates that a supplemental speech and language assessment was paused as a result of the exigencies of the Covid -19 pandemic. Exh. 81 at 4 (Bates 2081).

Having been performed in 2019 at the latest, the evaluations comply with the timeline mandates set out in 8 NYCRR 200.4(b)(4) and are not stale. Reviewing the 2020-2021 IEP, I find that all testing was current and accurately reflected the student’s present levels of performance, both strengths and weakness. With regard to the CLINICIAN 9 assessment, the document describes a “busy and active little girl who had difficulty sitting in a chair, as she continually moved around the table when test materials were presented. . . . REDACTED attempted to climb over evaluators to obtain her own objects. She followed her own agenda throughout testing and used materials in her own manner. She made minimal eye contact and did not engage in joint attention with evaluators . . . REDACTED did not use any words to communicate during the evaluations. Her attention span was poor, and she was very easily distracted . . . she attempted to push past evaluator as well as take evaluator’s hand and attempt to push hand toward toys. Her parents reported that her behavior during the evaluation was typical for her. . . . “ Exh. 49, passim; (Bates 3000-3008). The North County Kids evaluator further noted that REDACTED engaged in non-contextual vocalizations. All of these behaviors were red flags which were ignored by the District’s CPSE. Although the CPSE was in possession of current preschool evaluations, they did not appreciate or adequately consider its contents.

It should be noted that the REDACTED and CLINICIAN 9’s evaluations did denominate a number of REDACTED’s strengths. In furtherance thereof, the IEP notes that REDACTED can be directed to approach others when prompted, and “does not get frustrated easily.” Exh. 81 at 5 (Bates 2082). The IEP states, she “responds well to praise and prompts when encouraged to interact with others.” These mild descriptions of REDACTED, however, simply do not adequately describe the child’s management issues as they exist in a classroom as all testing was performed within an intimate and environmentally controlled clinical setting.^[16] In fact, even REDACTED recommended, “low student-to-teacher ratio to allow sufficient amounts of 1-on-1 time and small-group instruction.” Exh. 55 at 9 (Bates 30750.

Ultimately, the evaluative process did not, in any way, replicate the realities of the classroom in terms of stimulation, protocol or demands. As a result, the clinicians who participated in the child’s CPSE convene were seemingly blind to the cumulative impact of the child’s varied off-task behaviors within a mainstream setting. They reviewed the evaluations but given their perspective as 1:1 or push-in providers, did not appreciate the synergistic impact of these dysfunctional red flag behaviors within a mainstream class.

Lack of a Classroom Educator at the CSE

Of great concern is the fact that no one on the Committee had direct knowledge of REDACTED’s ability to function in a large group setting without the support of either a 1:1 SEIT or a dedicated paraprofessional. Exh. 81 at 2 (Bates 1087). As REDACTED did not participate in a preschool program the previous year nor did she receive SEIT services, the only clinicians at this CPSE convene were related service providers who primarily treated the child individually.

In fact, even the Parent had minimal experience observing REDACTED in group settings. Although REDACTED testified that REDACTED enjoyed the library’s communal play area, this is not an academic setting in which on-task performance, rule-following, academic demands and social cooperation are required. Indeed, other than the library, REDACTED testified that REDACTED had not participated in any group community activities.^[17] Consequently, no one at the April 21, 2020 CPSE had any experience or knowledge of the child’s ability to function within a mainstream UPK setting. For this reason, the failure to include a teacher with insight into the educational and behavioral demands of a classroom - mainstream or otherwise - was significant. In the absence of any current observation or the participation of a special educator, SEIT or otherwise, the child’s educational planning was predicated upon shaky and inadequate information.

Indeed, this was born out on the first day of preschool when the child’s teacher informed the Parent that REDACTED was not “ready for universal pre-kindergarten and should remain home for another year with home-based services.” December 15, 2022 Tr. at 867-868. For a child on the autism spectrum, a significant component of any assessment must include an evaluation of the child’s learning style and ability to cope with various levels of classroom stimulation. Reliance upon clinical testing performed in an intimate 1:1 setting, frequently with the Parent present, is not dispositive of a child’s true ability to manage within a classroom.

Rather, for any child on the autism spectrum, an assessment of his/her ability to focus, engage in abstract thought, participate in group learning activities, tolerate sensory stimulation, control self-stimulatory behaviors, follow instructions/rules and interact appropriately with peers are critical elements of any equation which seeks to identify an appropriate placement for the child. This is entirely apart from cognitive ability and addresses the child’s learning style and management needs. As a result, I believe the CPSE’s failure to convene a duly constituted committee established a significant defect in the integrity of the IEP. Although in possession of appropriate evaluations, the Committee did not adequately appreciate their contents.

Failure to Convene a CPSE Meeting at the Start of the 2020-2021 School Year

A third issue concerns the failure of the CPSE to convene and address both the Parents’ and the mainstream teacher’s concern about REDACTED’s ability to function appropriately within the classroom. In the matter, sub judice, the individual with the greatest professional knowledge of REDACTED, the child’s UPK teacher, TEACHER 4, advised the Parent to seek the support of a dedicated paraprofessional for her child - on day one. To this end, REDACTED reported that personnel were struggling to keep REDACTED focused and in her seat. December 15, 2022 at 866.

As requested, REDACTED spoke with ADMINISTRATOR 3, the District’s CPSE Chairperson, and was advised that the County’s SEIT providers would need to initiate a referral to the County. Following the referral, the CPSE would then convene with all parties, including the County. Instead, both SEIT providers independently determined that there was no need for 1:1 support. December 15, 2022 Tr. at 871. Rather, Ms. TEACHER 4’s opinion as the ONLY individual who consistently observed and worked with the child daily was marginalized. Consequently, the SEITs who worked individually with REDACTED three hours per week unilaterally foreclosed the opportunity for a CPSE convene without any discussion or input by the Parents or REDACTED’s full-time teacher. Significantly, the SEIT determination regarding the absence of REDACTED’s need for support appears to reflect some calculus involving time spent with related service providers versus the amount of time within the mainstream class. Ibid. at 869-875. Thus, given the extent of REDACTED’s individualized therapies, the SEIT providers pre-determined that REDACTED could handle the remaining classroom time in UPK without support. December 15, 2022 Tr. at 875.

In the matter at bar, the Parents’ point of contact was largely, although not exclusively, CPSE Chairperson, Ms. ADMINISTRATOR 3, an employee of the District. The referral for educational supports was initiated by Ms. TEACHER 4, a District employee. REDACTED child was additionally educated at a mainstream District site. Ms. ADMINISTRATOR 2, the County representative, is a member of the CPSE. It was clearly the District’s responsibility to convene a CPSE meeting once the Parent and teacher expressed concerns about REDACTED’s ability to function in her preschool class.

Nevertheless, the District maintains otherwise, suggesting that responsibilities are bifurcated between the District and the County. Thus, the District asserts that it is the CPSE’s responsibility to convene a CPSE meeting, but it is the County’s responsibility to furnish the recommended services. While the District may not be licensed to provide preschool services, I believe the District was in a superior position to communicate with the County and make the necessary arrangements on behalf of the Parent. Indeed, Jessica ADMINISTRATOR 2, the Children’s Services Program Preschool Specialist for REDACTED County, testified that she does not “usually know when a service is occurring in the summer or not.” December 15, 2022 Tr. at 826. She further noted that referrals for services may be initiated by either the Parent or the District. Ibid. at 837-838. In view of the above, I find that it was the CPSE’s duty to liaise with the County on behalf of the Parent, to conduct a CPSE convene and to secure the appropriate services through the assistance of the County. It is patently unfair to shift this burden exclusively to the Parents.

Clearly, the Parent was caught in an administrative tangle which should have been addressed by the District. “When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) or a local Committee on Preschool Special Education (CPSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law §§ 4402, 4410; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3; 200.4[d][2]; 200.16).” See Application of a Student Suspected of Having a Disability, App. No. 21-242.

Ultimately it is the District’s obligation to provide FAPE to all children with disabilities between the ages of three and five, unless state law provides otherwise. Beyond this, OSEP has consistently held that it is the District’s obligation to provide FAPE at no cost to parents, a burden which applies equally to preschoolers as well as school-aged children (emphasis added) (Letter to Neveldine 20 IDELR 181 (OSEP 1993); Letter to Neveldine, 22 IDELR 630 (OSEP 1995). Finally, in its Analysis of Comments and Changes to 2006 Part B Regulations, 71 Fed. Reg. 46540 (2006), OSEP again observed that the LEA is responsible not only for tuition expenses, but also for transportation and any other related services a child might require to receive FAPE (emphasis added).

While not all procedural defects render an IEP invalid, I find that the CPSE’s

(1) failure to adequately consider the preschool evaluations submitted for REDACTED,

(2) failure to convene a duly constituted CPSE consistent with 8 NYCRR 200.3(a)(1);

(3) failure to reconvene the CPSE to address the legitimate concerns of both the Parent and UPK teacher and

(4) failure to provide REDACTED with a 1:1 paraprofessionalduring the 2020-2021 school year were not merely procedural violations. Clearly, they, "impeded the child's right to a [FAPE]," "significantly impeded the parents' opportunity to participate in the decision-making process," or "caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172. One simply cannot appreciate the significance of REDACTED’s lack of focus and self-direction where there has been no observation of the child within the classroom or meaningful consideration of the preschool evaluations. In this matter, procedural violations have cumulatively and, in aggregate, resulted in the denial of a FAPE even if the violations considered individually do not. See Werner v. Clarkstown Cent. Sch. Dist.,363 F.Supp.2d 656, 659 (S.D.N.Y.2005).

Finally, while there is some suggestion that the District should have adopted the REDACTED recommendation for a center-based program, there was no testimony regarding availability of a center-based program in the REDACTED region. Moreover, the Parents did not testify that they had affirmatively requested referrals to a center-based program or would even prefer this setting. December 15, 2022 Tr. at 861-863; Exh. 55 at 10 (Bates 3076). Indeed, the Parents have been steadfast in their preference for mainstream or ICT education. Thus, it is likely the Parents would have rejected any placement other than REDACTED elementary school which was five minutes from home. December 29, 2022 Tr. at 961.

Having said this, while a CSE is required to consider private evaluation reports, it is not required to follow their recommendations (see, e.g., Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 [N.D.N.Y. 2004]). Moreover, the mere fact that a parent has retained a private expert to recommend alternative programming does not, sua sponte, invalidate the substantive provisions of the District’s IEP (Pascoe v. Washingtonville Cent. Sch. Dist., No. 96-CV-4926, 1998 WL 684583, at *6 (SDNY Sept. 29, 1998)). I find that the REDACTED recommendations are simply not controlling.

Point II: Given the lack of FAPE, is the Parent entitled to compensatory education for the 2020-2021 school year?

Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education, and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005). In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education.

Under the circumstances described above, I find that the child is entitled to one year of compensatory education, to be furnished upon aging out of school age services.

Point III: Consistent with Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982],was the June 3, 2021 and July 28, 2021 IEPs reasonably calculated to confer an educational benefit upon REDACTED during the 2021-2022 school year?

Evaluations and programming for the 2021-2022 school year

On June 3, 2021, the District and Parents convened to develop an IEP for REDACTED’s kindergarten school year. Present at this meeting were the child’s related service providers for speech and occupational therapy. In addition, both preschool SEIT teachers, TEACHER 1 and TEACHER 2 were in attendance. December 7, 2022 Tr. at 466. The CSE based their deliberations upon several evaluations, including an Educational Evaluation dated March 30, 2021 (Developmental Assessment of Young Children 2^nd Ed. DAYC-2 (hereinafter “DAYC”) in addition to a February 22, 2021 DAYC occupational therapy assessment. December 7, 2022 Tr. at 466. Exhs. 78 at 2-3 (Bates 2024-2025). Further testing included the Peabody Developmental Motor Scales, the May 16, 2019 Battelle Developmental Inventory and the March 10, 2010 Preschool Language Scale PLS-5. Exh. 78, passim. Although the Parent testified that the only psychoeducational evaluation available was dated May 19, 2019, this is patently incorrect. December 29, 2022 at 902. Indeed, the June 3, 2021 and July 28, 2021 IEPs clearly indicate a range of evaluations performed on the child during the 2020-2021 school year and their findings incorporated into the body of the IEP.

Consistent with 8 NYCRR 200.4(b)(4), a committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representative of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary. In the case at bar, there is no indication that the Parents ever requested an updated evaluation.

Having been performed in 2021, the DAYC educational evaluation was current as was the Occupational Therapy and Peabody evaluations consistent with the mandates set out in 8 NYCRR 200.4(b)(4). Beyond this, I find that the testing accurately reflected the student’s present levels of performance, both strengths and weakness, giving a global view of REDACTED’s ability to function within the classroom.

While the Parent maintains that the CSE should have been guided by the REDACTED records, I find these assessments unpersuasive. For example, the July 1, 2021 report references the conduct of the Holbrook Preschool Early Reading Assessment Battery. The assessment appears to have been performed by nurse practitioner REDACTED CLINICIAN 10, whose training in administering cognitive testing is unknown. It additionally purports to be a Developmental Assessment but is grossly inadequate. Exh. 55 at 2 (Bates 3068). No subtests are reported and the “evaluation” provides no insight into REDACTED’s executive function, working memory, self-regulation, filtering capabilities, processing abilities and/or auditory strengths. The non-boiler plate summary of the “developmental assessment” states, in full, “REDACTED is able to count 10 objects and can identify 13/13 capital letters. She is able to answer a few basic information questions, however, is fairly self-directed and can be impulsive at times. Despite this she does have good knowledge of early academic skills and has verbal abilities equivalent to a number of children I’ve seen in general education classes with robust supports.”

The vague and unreliable contents of this report, conducted by an evaluator whose credentials are unknown, do little more than trivialize the importance of a developmental assessment. Indeed, the REDACTED records are frequently comprised of large swathes of boiler plate language. Exh. 55, passim. There is no indication that school records or teacher input was ever sought. Nurse CLINICIAN 10 has never requested an observation and it is unclear whether she has even seen REDACTED in a setting other than her office. Her opinions and assessment appear to be based exclusively upon the child’s performance within the confines of the examiner’s office and most likely in the presence of the Parent.

Clearly, the remaining June and July 2021 assessments indicate that REDACTED was somewhat below average in cognitive, adaptive and social-emotional domains. However, the child was performing well academically and entered kindergarten with a wealth of information. Her preschool concepts were very strong, and the child was able to identify colors, written numbers and most uppercase letters. In fact, the June 3, 2021 IEP indicates that REDACTED could formulate paired associations with “Things That Go Together” cards and identify size comparisons, an abstract ability. Exh. 78 at 4 (Bates 2026). She demonstrated adequate functional communication and was able to answer questions about stories using pictures as clues. Indeed, the Parent reported no concerns about REDACTED’s academic skills. As a result, the IEP reflected goals which essentially addressed behavioral and fine motor deficits, rather than academic needs.

Nevertheless, the child’s management needs had escalated. By this time even SEIT instructors TEACHER 1 and TEACHER 2 believed the child required 1:1 supervision with the close assistance of a dedicated aide. Significantly, REDACTED’s inappropriate off-task behaviors, poor impulse control and high levels of distractibility were interfering with her own ability to access an education. In some instances, the child’s elopement and bolting behaviors had become dangerous to both REDACTED and others. When frustrated, N. R.T. would scatter or throw materials, walk about the classroom or hide under the desk. Although the child did cooperate at times, such cooperation was elicited on REDACTED’s terms.^[18]

In response, the IEP articulated a host of management modifications, including the use of verbal and visual instructional prompts, teacher modeling, gestures, calming techniques, if-then verbiage, protracted wait time for responses, and a visual schedule with warning cues for upcoming transitions. In addition to these accommodations, a sensory diet was recommended. As the child was additionally unsteady in her seat, flopping over sideways onto the floor, flexible seating was also recommended.^[19]

As a result of the child’s management needs, a 12:1:1 classroom was recommended. Nevertheless, the Parents disagreed with this placement as they wished to maximize the amount of time their child spent with mainstream children. Thereafter, on July 22, 2021, the District issued a Notice of Recommendation for the development of an FBA and BIP at the commencement of the new school year. Exh. 79 at 15-16 (Bates 1040-1041). The Parents continued to object to group counseling but did consent to a physical therapy evaluation in the fall.

At some point during the summer of 2021, the District developed an ICT class. Ms. ADMINISTRATOR testified that, in the spirit of collaboration with the Parents, the District agreed to place REDACTED in this class. In an amendment to the June 3, 2021 IEP, the July 28, 2021 changed its recommendation to an ICT class, while maintaining the accommodations previously articulated. Exhs. 78, 79, passim. Although I do not believe the ICT was ever appropriate for REDACTED, this placement reflected the District’s sincere effort to collaborate with the Parents.

Parental Counseling and Training

There is no question that the Parents did not receive parent counseling and training consistent with 8 NYCRR 200.13(d). In New York, regulations require that an IEP furnish parents of autistic children with parent training and counseling. See 8 NYCRR § 200.13(d). "Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's individualized education program." The purpose of this training is to facilitate the generalization of newly acquired skills into the home. In this manner, the parents can become active participants in executing and supporting their child’s IEP. It is additionally anticipated that through training, parents of autistic children will develop greater insight into the complex needs of their child. While the failure to incorporate parent training and counseling is, in fact, a procedural defect within the child’s IEP, it has long been determined that it is a “less serious” violation as “the presence or absence of a parent counseling provision does not necessarily have a direct effect on the substantive adequacy of the [IEP]” ( L.O. vs. the NYC Dep’t of Educ, 822 F3^rd 95, 122 (2^nd Cir. 2016), quoting M.W. ex rel S.W. vs. the NYC Dep’t of Educ, 725 F.3^rd at 141 (2^nd Cir. 2013). See also R.E. vs. the NYC Dep’t of Educ, 694 F.3^rd at 167, 191(2^nd Cir. 2012). Given this reasoning, I do not see how the Parents were truly deprived of FAPE by virtue of the lack of parent training.

Lack of 1:1 Teacher Support versus Assignment of a 1:1 Paraprofessional

I note, additionally, that the Parents have suggested that the IEP should have provided 1:1 teaching support as opposed to 1:1 support by a dedicated paraprofessional. As there was no testimony regarding the relative benefits of 1:1 teaching support where the child has already been furnished with a 1:1 paraprofessional, there is no basis to conclude that FAPE was not provided. The child already receives many 1:1 related services in addition to small group instruction within the context of an ICT paradigm. Cognitive testing indicates that the child functions at the lower range of normal. There simply is no basis to conclude that REDACTED requires full-time 1:1 teacher support. It has long been established that, "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" (B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New YorkCity Dep't of Educ.,No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.

Do defects in the FBA/BIP along with the absence of parent training and counseling cumulatively result in a denial of FAPE?

The Parents additionally allege that the District stands in violation of its mandate to provide REDACTED with FAPE during the 2021-2022 year by virtue of an inadequate FBA and BIP. In furtherance thereof, they assert that the District offered an inadequate FBA/BIP and, in concert with the absence of parent training, the IEP must be declared a nullity.

In determining whether an IEP complies with the IDEA and, therefore, provides FAPE, courts make a two-part inquiry that is, first, procedural, and second, substantive. . . . Procedural violations warrant tuition reimbursement only if they impeded the child’s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decision [-]making process,’ or ‘caused a deprivation of educational benefits.’ Cerra vs. Pauling Cent. Sch. Dist., supra at 190, 192 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii); A.C., 553 F.3d at 172). Specifically, parents must articulate how a procedural violation resulted in the IEP’s substantive inadequacy or affected the decision-making process. Where appropriate, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” See Werner v. Clarkstown Cent. Sch. Dist.,363 F.Supp.2d 656, 659 (S.D.N.Y.2005).

In the matter, sub judice, the Parents maintain that the District failed to complete an adequate functional behavioral assessment ("FBA") and behavior intervention plan ("BIP"). New York regulations require the District to conduct an FBA for a student "whose behavior impedes his or her learning or that of others." N.Y. Comp. Codes R. & Regs. tit. 8 § 200.4(b)(1)(v). By statute, the FBA must include "the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior ... and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it." When a student's behavior impedes his learning, a BIP must be developed with strategies to deal with the problem behavior(s). Notwithstanding this, the Courts have repeatedly maintained that while the failure to conduct an FBA is a procedural violation, it does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage (A.C. vs. Bd. of Educ. of Chappaqua CSE, 553 F.3d at 172).

Indeed, the failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all. The entire purpose of an FBA is to ensure that the IEP's drafters have sufficient information about the student's behaviors to craft a plan that will appropriately address those behaviors. See Harris v. District of Columbia,561 F.Supp.2d 63, 68 (D.D.C.2008) ("The FBA is essential to addressing a child's behavioral difficulties, and, as such, it plays an integral role in the development of an IEP."). However, the failure to conduct an FBA will not always rise to the level of a denial of a FAPE,but when an FBA is not conducted, the court must take particular care to ensure that the IEP adequately addresses the child's problem behaviors.See A.C., supra at 172 (finding that IEP provided appropriate strategies for student's problem behaviors when it (1) addressed student's attention problem by providing a personal aide to keep child focused and (2) addressed child's "minimal" tangential and fantasy speech with specific strategies.

In the matter at bar, the FBA identified seven discrete behaviors to be addressed. Success was based upon specific criteria in terms of the number of prompts REDACTED required to follow directions. The FBA/BIP describes antecedent behaviors reflecting teacher demands to perform some unpreferred classroom task. Replacement behaviors are additionally articulated. The document includes the use of positive reinforcements as part of a token economy and additionally describes consequences for non-compliance. Exh. 57. Although the sophistication of the District’s FBA/BIP cannot be compared with the FBA/BIP envisioned by Dr. CLINICIAN 7, the FBA/BIP was ultimately implemented as a criterion-based, albeit simple, document. Exh. 57. Specifically, although not articulated in the FBA/BIP itself, REDACTED was provided with a token economy,^[20] and cued to respond within two prompts. When REDACTED was successful, the child was offered various reinforcements through a token economy. While the FBA/BIP does not provide for graphing, scatterplot diagrams or quantitative analysis, it provides a general picture of the child’s behavior. In fact, the smiley faces on the child’s behavior chart could easily be transformed into quantitative information by assigning the smiley faces a number. Nevertheless, the data does not include baseline information, frequency, duration or amplitude across activities or settings. November 30, 2022 Tr. at 320-324. However, none of this is required where the IEP addresses the child’s dysfunctional behaviors and specifically prescribes an intervention for them. Ultimately, although a rudimentary document, the Parent testified, “the daily reports showed she overall had . . . . more good days than bad,” referencing the first half of the 2021-2022 school year. December 29, 2022 Tr. at 914.

As in A.C., supra, the District’s IEP references a panoply of techniques designed to facilitate REDACTED’s on task behavior and eliminate transition struggles. As stated earlier, it provides for a 1:1 dedicated aide in addition to the use of verbal and visual instructional prompts, teacher modeling, gestures, calming techniques, if-then verbiage, protracted wait time for responses, and a visual schedule with warning cues for upcoming transitions. In addition to these accommodations, a sensory diet was recommended. In fact, it is clear that District personnel engaged every strategy they could identify in order to facilitate REDACTED’s ability to function within the ICT classroom.

Testimony beyond the four corners of the IEP was additionally elicited and, in furtherance thereof, personnel elaborated upon the elements identified in the child’s IEP. Aside from the 1:1 paraprofessional, this included the use of sensory breaks, sensory bins, zones of regulation, “front-loading” timers and environmental accommodations to alert REDACTED to upcoming transitions, repeating instructions, visual schedules, if-then verbiage, headphones, modifying response criteria to allow pointing to answers without eye contact, flexible seating with a rocking chair, Second Step instruction, use of background music during speech therapy, “brain breaks” in the classroom, classroom clip charts, a Velcro smiley chart, a token economy and the creation of a satellite sensory gym next to REDACTED’s classroom so that she would not need to walk through the halls. Notably, District personnel described the modifications and accommodations which they had already implemented. They did not speculate about what could be offered and their testimony cannot be considered retrospective in nature.

While testimony that materially alters the written plan [the IEP] is not permitted, testimony may be received that explains or justifies the services listed in the IEP. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564-65 (3d Cir.2010) ("[A] court should determine the appropriateness of an IEP as of the time it was made, and should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district's decisions at the time they were made."). Under these circumstances, I find that the absence of a sophisticated FBA/BIP developed with the expertise of a BCBA does not render this IEP defective. As in R.E., supra, the absence of an FBA/BIP along with the failure to provide parent counseling did not establish a substantive violation of FAPE (R.E. o/b/o J.E., supra [ No. 11-1266-cv]).

In sum, there is no doubt that the child’s behavioral issues were exerting an impact upon REDACTED’s ability to access an education. The District, however, referenced a plethora of strategies in its June and July 2021 IEPs for addressing these issues and personnel testified as to how these interventions were implemented. In the case at bar, the only educational intervention which was not implemented was the recommendation for a 12:1:1 classroom, a placement in which reduced sensory stimulation, limited transitions and instructional modifications were inherent in the program. Notably, the District had previously made many efforts to place the child in this setting, a placement consistently rejected by the Parents. Indeed, but for the District’s desire to work collaboratively with the Parents, REDACTED would have participated in a 12:1:1 paradigm.

Point IV: Pursuant to 34 CFR 300.114(a), was REDACTED’s April 12, 2022 IEP consistent with the District’s obligation to furnish services within the least restrictive environment?

For the reasons set forth earlier in addressing the June 3, 2021 and July 28, 2021 IEPs, I find that the evaluations are not stale and provide a global view of the child’s strengths and weaknesses. Even the earliest evaluation, the Battelle Developmental Inventory, dated May 16, 2019, complies with the District’s IDEA timeline mandate. The remaining question concerns the appropriateness of the District’s 12:1:1 recommendation and its obligation to furnish services within the least restrictive environment (hereinafter “LRE”).

The LRE mandate demands that students be educated in regular classroom settings to the maximum extent appropriate ( 34 CFR 300.114 (a); and OSEP Memorandum 95-9, 21 IDELR 1152 (OSEP 1994). Specifically, to the extent possible, children with disabilities, including children in public or private institutions, must be educated with children who are nondisabled. As a corollary, special classes, separate schooling, or other removals of children with disabilities from the regular educational environment may occur only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily [emphasis added] 34 CFR 300.114 (a). Conversely, if a child's placement does not confer a "meaningful benefit" to the student and a more restrictive program is likely to provide such benefit, the child is entitled to be placed in that more restrictive program. P. v. Newington Bd. of Educ., 546 F.3^rd. 111 (2^nd Cir. 2008); Hartmann v. Loudoun County Bd. of Educ., 118 F.3d. 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998), 522 U.S. 1046 (1998).

In fact, the IDEA creates a "strong presumption that children with disabilities will be educated in regular classes with appropriate aids and services. However, the IDEA does not mandate full inclusion in regular classes. 71 Fed. Reg. 46,585 (2006). See St. Louis Dev. Disabilities Treatment Ctr. Parents' Ass'n v. Mallory, 591 F. Supp, 1416 (W.D. Mo. 1984); aff'd, 557 IDELR 104 (8th Cir. 1985); and Lachman v. Illinois State Bd. of Educ., 852 F. 2^nd 290 (7th Cir. 1988), cert. denied, 488 U.S. 92, (1988).118 F. 3^rd 996 (4th Cir. 1997), cert. denied, 118 S. Ct. 688 (1998).

The term "inclusion" is commonly understood to mean that a student with disabilities receives at least portions (emphasis added) of his/her education in the regular education classroom (Board of Educ. of the City Sch. Dist. of the City of Rochester, 26 IDELR 823 (SEA NY 1997); and Quitman Sch. Dist., 58 IDELR 236 (SEA MS 2012). "Full inclusion" is the placement of the student in the mainstream for the entire school day with all activities delivered in the mainstream ( New Haven Bd. of Educ., 110 LRP 4313 (SEA CT 10/30/09).

In making a placement determination, priority must be given to placement in the regular classroom with any necessary supplemental aids and services to make that placement successful. Only after that placement is considered should districts move to more restrictive placement options. However, a child with a disability need not fail in the regular education environment before a local educational agency can consider or implement a placement in a more restrictive setting. Letter to Cohen, 25 IDELR 516 (OSEP 1996); and OSEP Memorandum 95-9, 21 IDELR 1152 (OSEP 1994).

In P. v. Newington Board of Education, supra, the Second Circuit adopted a two-pronged approach used by several other Circuit Courts, perhaps most notably the Third Circuit in Oberti v. Board of Educ. When determining whether a student’s proposed placement meets the least restrictive environment requirement, the Court analyzed (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate.

In considering the first question, the inquiry requires additional consideration of (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. Id. 34 8 N.Y.C.R.R. §§ 200.1(m), 200.6(d). Oberti v. Bd. of Educ., 995 F.2d 1204 (Cir. 1993); P. v. Newington Bd. of Educ., 546 F.3d 111, 120 (2d Cir. 2008).

With regard to prong one of P. v. Newington, I find at the outset that the District made every reasonable effort to support REDACTED in both mainstream and ICT classes. Specifically, it has provided an extensive array of supports and services designed to facilitate the child’s ability to manage mainstream and ICT education. None of this has been successful, even with the support of a 1:1 paraprofessional. As early as October 4, 2021, the Parent was advised that REDACTED had had a “rough” day, running off from her 1:1 paraprofessional and ignoring instructions. Exh. 54 at 16 (Bates 3037). A day later, the District advised the Parent as follows: “REDACTED had another tough day today. Miss REDACTED (the child’s 1:1 aide) made sure to offer her many bathroom breaks and add that to her schedule . . . She doesn’t want to do paper/pencil work and sometimes doesn’t want to sit and listen on the carpet. When she doesn’t feel like doing anything I think is when (sic) she is running away or screaming/refusing to follow directions. It has escalated quite a bit in the last two days, and we needed to call REDACTED CLINICIAN 2^[21] [a school crisis team member].” Exh. 54 at 15 (Bates 3036). At this time, the smiley face protocol was implemented and REDACTED seemed to be responsive. Nevertheless, this improvement appears to have been transitory as a review of the child’s progress for the 2021-2022 school year indicates that little progress was made in several areas.

While the child demonstrated relative strengths in rote knowledge of easily memorized numbers and letters, her yearly report card is a sad reflection of diminishing skills, particularly in the areas of work habits, speaking and listening, social development and reading. In the second quarterly assessment, Ms. TEACHER 3, the child’s mainstream teacher, indicates that “REDACTED is working on following directions the first time they are asked with little to no prompts. Her ability to focus her attention makes it difficult for her to be successful in her learning.” The third quarterly report reiterates Ms. TEACHER 3’s concern about maintaining focus, distractibility, following directions and task completion. Exh. 54 at 2, (Bates 3023) and 6 (Bates 3027).

Referencing the progress reports for REDACTED for the 2021-2022 school year, Ms. ADMINISTRATOR testified that, “little success or ability to demonstrate success attaining these goals was documented.” November 15, 2022 Tr. at 76-79; Exh. 60 at 1-8 (Bates 3091- 3098). Similarly, occupational therapist CLINICIAN 1 indicated that as academic materials became more difficult and less familiar to REDACTED, the child’s level of frustration accelerated, compromising REDACTED’s to focus on instructional demands and absorb educational materials. November 29, 2022 Tr. at 256-257. Indeed, while the FBA/ BIP had been somewhat successful during the first quarter of the 2021-2022 school year, it could not compensate for REDACTED’s global deficits in attention, frustration tolerance and on-task performance.

In speech, therapist CLINICIAN 5 opined that REDACTED had made “minimal to non-existent progress.” November 30, 2022 Tr. at 379. Although some goals had, in fact, been achieved, the child did not generalize them beyond the structured setting of her clinical office. In some instances, goals had even been downgraded to maximize opportunities for REDACTED to succeed. Nevertheless, Ms. CLINICIAN 5 reported that as the year progressed and new materials were presented, REDACTED’s dysfunctional behaviors intensified and severely compromised her ability to focus on learning. November 30, 2022 Tr. at 378-379. Indeed, even in occupational therapy, an area in which REDACTED was motivated to engage in crafts and artwork, therapist CLINICIAN 4 testified that she had not observed any generalized progress in the ICT classroom. November 30, 2022 Tr. at 447. It is axiomatic that a skill which is not generalized has not been acquired.

Significantly, SEIT TEACHER 2 testified that REDACTED’s progress was negligible. December 7, 2022 Tr. at 524-529, 535; Exh. 72, passim. This witness observed that the ICT class was a “huge trigger” for REDACTED as the stimulation inherent in a class of 17 children, five adults and additional related service push-in providers was overwhelming for the child. On some days, REDACTED’s inability to self-regulate consumed the entire academic day. December 7, 2022 Tr. at 506-507. On these occasions, REDACTED’s behavior devolved into unsafe and dangerous classroom management issues. On these occasions, SEIT TEACHER 2 testified that REDACTED would run around the classroom, throw objects and, on some occasions, require physical restraint of the child or evaluation of the entire classroom. Ibid. at 514, 508-509, 511-512. It is beyond cavil that dysfunctional behavior of this amplitude militates against any productive educational benefit.

Finally, mainstream educator TEACHER 3 testified regarding REDACTED’s unsafe behaviors. Ms. TEACHER 3, too, noted that the child’s ability to cope within the ICT class had deteriorated as more sophisticated materials were presented to the class. She noted that it was not uncommon for REDACTED to race about the classroom, hide under the desk or flee from the room. On some occasions, REDACTED would propel hard objects about the room, grab another student by the neck or arch her body backwards such that she would fall from the chair, potentially striking her head. As the year progressed, REDACTED’s dysfunctional behaviors were a near daily occurrence. This included physical aggression with adults which occurred approximately three times per week. She credibly testified that personnel were often afraid for REDACTED, her peers and themselves. When unresponsive to the gamut of services aimed at defusing REDACTED’s outbursts, the crisis team would be called, and the classroom evacuated. December 14, 2022 Tr. at 639-642. Clearly, no instruction is occurring when the child is engaging in these behaviors.

Every one of the child’s providers testified that REDACTED is capable of learning and progressing when provided with 1:1 or small group instruction. In contrast, every one of REDACTED’s teachers or providers testified that the child had made minimal, if any, progress within the ICT classroom during the 2021-2022 school year. Moreover, whatever progress had been evidenced occurred within the confines of 1:1 or small group instruction and did not generalize into the classroom.

As such and consistent with prong two of Newington, supra, I find that the educational benefits available to REDACTED in the ICT class are minimal, even with appropriate supplementary aids and services. Clearly, the District has made reasonable efforts to accommodate the child in an ICT classroom. Their efforts have been unsuccessful because the inherent nature of an ICT reflects a highly stimulating environment in which transitions occur frequently. Even within this paradigm, the educational modifications required by REDACTED cannot be offered.

For example, it should be noted that pupil/personnel ratio is not the only factor which may determine the level of distraction within a class. It does not address the issue of instructional pacing, the heightened presence of visual stimuli occasioned by the mere increase in student enrollment or the plurality of ideas, some of which may be conflicting. It does not consider the distractions inherent within providing instruction for mixed abilities. The importance of transition issues, such as packing up materials, navigating the building efficiently and regaining focus, is marginalized. More significantly, it does not address the increased cognitive challenge to prioritize and filter material presented. Clearly, the delayed feedback, inherent within a larger integrated class, would impact negatively on a child whose distractibility is a key issue. For a student such as REDACTED, instruction -even within an integrated setting- advances at a pace which far outstrips her ability to keep up. As a result, the child is always struggling to develop foundational skills while others are moving on to more advanced materials.

Indeed, the addition of SETSS does not alter the pacing of classroom instruction, the level of instruction or the degree of distraction associated with increasing class size. This is the benefit of a smaller 12:1:1 special education class, a benefit which cannot be duplicated within the ICT format. Clearly, the child has learned very little in the past two years in an ICT class, notwithstanding a full range of accommodations and support. The law simply does not require a child to fail at every level of the continuum before arriving at the appropriate education planning. In view of all the above, I find that a 12:1:1 classroom is appropriate for this child and meets the requirements of LRE.

Finally, as per Newington, it is clear that the negative effects of REDACTED’s inclusion on the education of other students in her class has been significant. See 34 8 N.Y.C.R.R. §§ 200.1(m), 200.6(d); Oberti v. Bd. of Educ., 995 F.2d 1204 (Cir. 1993). No student has the right to consistently impair the ability of his/her peers to access an education as REDACTED currently does. The daily outbursts are an unreasonable distraction as are the calls to the crisis team and the need to evacuate the classroom. REDACTED’s peers should not be subject to the dangerous behaviors (kicking, being grabbed around the neck, dodging thrown objects, pushing etc.) continuously exhibited by REDACTED. Indeed, the Parents insistence on the benefits of mainstream education is at once logical and irrational. While it is true that peer-modeling can benefit REDACTED, her self-isolating behaviors and unprovoked physical aggression have most likely instilled little more than fear among her typically developing peers and an antipathy toward engaging with her. Beyond this, as articulated earlier, peer modeling is only one part of the educational equation, given REDACTED’s learning style and needs. Although mainstream and ICT may once again be viable for REDACTED, it is unreasonable and inappropriate at this time.

Point V: Are the Parents equitably estopped from asserting a right to recovery?

I note that the Parents’ refusal to engage REDACTED in group counseling was harmful to REDACTED and clearly would have benefitted the child. Although the value of this service as a particularly important social skills intervention was explained to REDACTED, the child did not participate. Instead, REDACTED continued to believe group counseling addressed the presence of psychiatric trauma. Beyond this, I note that REDACTED still does not receive physical therapy although the physical therapy evaluation indicates that REDACTED struggles with balance, coordination and safe stairway descent. When seated, REDACTED is unstable and falls off her chair. This is a basic question of safety which the Parents are neglecting. Exh. 56. While understandably the Parents wish to minimize REDACTED’s absence from the classroom, there are, nevertheless, skills which do not lend themselves to classroom instruction and, in aggregate, supersede the importance of peer modeling. Social skills counseling and physical therapy address such skills. Beyond this, the Parents have not been proactive in securing appropriate services for REDACTED and their failure to pursue any of REDACTED’s recommendations other than their referral to a pediatrician is disturbing. December 29, 2022 Tr. at 950-952. Nevertheless, I do not believe their actions compromise their right to recover.

Conclusion

I find that the Parents’ request for relief must be granted in part. The District failed to provide appropriate educational services during the 2020-2021 school year and, as a result, I find that REDACTED is entitled to one year of compensatory services. However, I find that the educational programming for the 2021-2022 and 2022-2023 school years did constitute FAPE. Although I find that the FBA/BIP was appropriate, the District is strongly urged to consider outsourcing a new FBA/BIP including a brief interval of training by an individual with BACB or BCBA expertise.

Wherefore, it is hereby ordered that:

1. The child shall be entitled to one year of compensatory education.
2. If the District has not already done so, they are directed to complete a triennial evaluation within 45 days from the date of this Order.

Dated: February 21, 2024

_________________________________________

Lynn Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in attendance on November 15, 2022

For the Parents:

Law Office of REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

Persons in attendance on November 29, 2022

For the Parents:

Law Office of REDACTED by REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

CLINICIAN 1, School Psychologist

Persons in attendance on November 30, 2022

For the Parents:

Law Office of REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

CLINICIAN 1, School Psychologist

REDACTED, Speech and Language Therapist

REDACTED CLINICIAN 4, Occupational Therapist

Persons in attendance on December 7, 2022

For the Parents:

Law Office of REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

CLINICIAN 1, School Psychologist

REDACTED CLINICIAN 4, Occupational Therapist

TEACHER 2, Special Education Teacher

CLINICIAN 6, School Psychologist

Persons in attendance on December 14, 2022

For the Parents:

Law Office of REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

TEACHER 3, General Education Teacher

Persons in attendance on December 15, 2022

For the Parents:

Law Office of REDACTED, Esq.

REDACTED, Parent

REDACTED, Parent

CLINICIAN 7, Ph.D., BCBA

For the District:

REDACTED and REDACTED, PLLC by REDACTED, Esq.

REDACTED, CSE/CPSE Chairperson

ADMINISTRATOR 2, Children’s Services Specialist, REDACTED County

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.

Footnotes

[1] Known alternatively as BOCES or CV-TEC.

[2] The SD’s evidence was initially presented as a 7500-page document with only seven exhibit tabs. In some cases, the exhibits contained between 150-200 pages. Each page of this initial exhibit package had been furnished with a Bates number. Given the confusing and burdensome nature of the original evidentiary package, the SD was asked to prepare a more specific roster of exhibits so that documents could be identified more easily. As a result, the exhibits were re-paginated and re-organized. Some documents continue to reflect Bates numbers and I will additionally refer to them.

[3] Speech-Language therapy and Occupational Therapy

[4]

[5] Board Certified Behavior Analyst

[6] As measured by quarterly reports, emails, global SchoolTool notes and [Microsoft] Team meetings.

[7] i.e., allowing the child to transition first, allowing the child to select her position on a class line

[8] Alternatively sad or neutral faces were utilized to reflect behavior.

[9] Consonant-vowel-consonant words i.e., cat, bat, can, man

[10] The witness noted that a student presently assigned to the 12:1:1 classroom is concurrently participating in a mainstream math class.

[11] See Exh. 59 at 1 (Bates 3016), AIMSweb scores

[12] No more than four children. December 14, 2022 Tr. at 654-655.

[13] Also known as FACES

[14] Ignoring, wandering away, running away, failure to comply with direction, laying on the floor or rolling around the floor, crawling away from adults and whining December 15, 2022 Tr. at 756.

[15] Although CLINICIAN 10 is repeatedly referred to as a physician, she is in fact a pediatric nurse practitioner.

[16] On some occasions, the Parent testified that REDACTED sat on her lap during the evaluations.

[17] i.e., scouts, camp, gymnastics etc.

[18] i.e., if the activity involved play, was highly motivating for REDACTED or involved puppets. Exh. 79 at 3 (Bates 2037).

[19] While the Parents had long resisted a physical therapy assessment, they did agree to an evaluation in the Fall of 2021.

[20] The child would acquire happy smiley faces which could be exchanged for a reward.

[21] A member of the school’s crisis team