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CASE NUMBER: 588837 - NYC: 239946
FINDINGS OF FACT AND DECISION
Case Number: 239946
Student’s Name[1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED](“Parent”)
Request Date/Date Complaint Filed: October 3, 2022
Date(s) of Hearing: February 16, 2023
Actual Record Closed Date: March 13, 2023
Date of Decision: March 27, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 16, 2023
[REDACTED], Attorney — Student
[REDACTED], — Parents
[REDACTED], Neuropsychologist — Student
[REDACTED], Principal, [REDACTED] — Student
[REDACTED], SETSS provider — Student
No one — DOE
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated September 30, 2022 and filed on October 3, 2022. (Ex. P-A)[2]. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO received notice of appointment on January 12, 2023 after receiving a notice of motion to schedule from the District. No notice of appointment was received by the IHO prior. Counsel for the Parent confirmed that he did not receive any notice of my appointment from the District until January 11, 2023 (T:3). An order of extension was granted to compensate for the District’s delay in notification of appointment. A pre-hearing conference on notice to both parties was held on January 17, 2023. [REDACTED] appeared on behalf of the Parent. No one appeared on behalf of the District. A second order of extension was granted at the request of the Parent based upon the availability of witnesses. A hearing was scheduled on notice to both parties for February 16, 2023 (Ex. IHO I). [REDACTED] appeared on behalf of the Parent. No one appeared on behalf of the District. The District never appeared at the hearing, requested an adjournment or filed a notice of appearance. As such, the hearing proceeded in absentia. A final order of extension was granted for the Parent to submit a post-hearing brief.
On February 16, 2023, the Parent entered into evidence exhibits A-P.[3] The Parent submitted a post-hearing closing statement and memorandum of law on March 13, 2023, copied to the District. The District did not submit a closing submission. The record was closed on March 13, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is a [REDACTED] year old bilingual boy classified as a student with Autism by the District’s Committee on Special Education (“CSE”). The CSE met and developed an IEP for the 2022-23 school year which recommended a 6:1:1 special class, speech and language therapy, occupational therapy and a full time 1:1 paraprofessional for behavioral support in a District 75 school. According to the DPC, IHO Randy Glasser issued a Findings of Fact and Decision (FOFD) on August 30, 2022, ordering the District’s CSE to convene within 10 days and refer the Student to the Central Based Support Team (CBST) for placement in a small, highly structured and specialized non-public ABA school setting[4]. According to the DPC, neither party appealed the decision of IHO Glasser. The District failed to abide by the order and never convened the CSE to recommend an appropriate program for the 2022-23 school year. As such, the Parent requests a determination that the CSE failed to offer the Student a free appropriate public education (“FAPE”) for the 2022-23 school year, an order for tuition reimbursement/direct funding of the Student’s private placement for 2022-23 in [REDACTED] (hereinafter referred to as “the private school”) and reimbursement/direct funding of an after-school 1:1 applied behavioral analysis (“ABA”) program of 10 hours per week. (Ex. P-A-2-3).
ISSUES
The Parent alleges that the District failed to offer the Student a FAPE for the 2022-23 school year by failing to convene the CSE and comply with the unappealed order of IHO Glasser. The Parent argues further that she is entitled to reimbursement/direct funding of the unilateral placement at the private school, as well as after-school 1:1 ABA instruction 10 hours per week.[5]
FINDINGS OF FACT
The Parent first referred the Student for special education services at age 3. Due to his delays in socialization and communication, he was offered a placement in a special education preschool. Due to the pandemic, his Parent opted for a [REDACTED]-speaking special education itinerant teacher (SEIT) to come to the house. He attended [REDACTED] for the 2019-
20 and 2020-21 school years (T:45). He entered kindergarten in September of 2021 at [REDACTED]. He was initially placed in an integrated co-taught (“ICT”) class and was shortly moved to a 12:1:1 special education classroom with a one-to-one paraprofessional. The Student acted out in the special education classroom, and his parents were called frequently to pick him up. The school even asked the Parent to come and sit next to the Student during the full school day, and she had no option but to bring along her then one year old son. This lasted for approximately a month (T:53-55). In December of 2021, the parents determined the situation was untenable and placed him back in the private [REDACTED] (Ex. P-B-1-2, T:45-46). During that time he received 12 hours of special education teacher support services (“SETSS”)
4 The decision of IHO Glasser was not introduced into the record.
(T:45,47). For the 2022-23 school year, the District met in June of 2022 and again recommended placement in a 12:1:1 classroom (T:56). The prior IHO found that recommendation inappropriate and recommended placement in a 6:1:1 for the 2022-23 school year, but the CSE never reconvened to make that recommendation (T:57-58). He began the 2022-23 at [REDACTED] and moved to the current private school in October of 2022 (T:51).
In December of 2021 and January of 2022, the Student was evaluated by bilingual neuropsychologist [REDACTED] (hereinafter referred to as “the evaluator”). Due to the Student’s markedly limited joint attention and engagement, poor compliance and markedly deficient communication ability, his intellectual functioning and academic achievement could not be measured on standardized testing. On rating scales, his teacher rated his functional academics as deficient (Ex. P-B-5). His inattention was rated from elevated to clinically significant. He did not produce any verbal utterances and his ability to communicate nonverbally also appeared limited. His receptive language was very limited in both English and [REDACTED]. His motor function was also delayed. His overall adaptive behavior was below average. He displayed clinically significant difficulties in social cognition and processing. He scored in the mild-to moderate symptom range on the Childhood Autism Rating Scale -2. Behaviorally, there were concerns about frustration, but no aggressive behaviors expressed by teachers and parents (Ex. P-B-6-8).
The evaluator found that the Student met the criteria for Autism Spectrum Disorder (“ASD”) Level 2, requiring substantial support for both social communication and restricted/repetitive behavior. He also met the criteria for Attention-Deficit/Hyperactivity Disorder, predominantly inattentive presentation (Ex. P-B-9). The evaluator recommended full-time 1:1 special education instruction (6 hours per day or 30 hours per week) to enable him to attend his preschool and 10 hours of ABA at home. She stated that the 40 hours would also compensate him for insufficient services during 2019-20 and 2020-21. For 2022-23, she recommended 12month placement in a small ABA school that offers 1:1 or 2:1 instruction. He required a Functional Behavioral Assessment (FBA) and behavior intervention plan (BIP). She recommended an assistive technology evaluation given his markedly limited language functioning and a neurological exam. She recommended speech language therapy 30 minutes, five times per week 1:1 and occupational therapy 30 minutes, three times per week. He requires access to good peer role models. A follow-up neuropsychological evaluation in one year was also recommended (Ex. P-B-9-11).
In her affidavit of testimony, the evaluator confirmed her prior test results and recommendations for a small, structured ABA school and 10 hours of home ABA to generalize skills learned in school to the home environment (Ex. P-C-6-7). At the hearing she testified that he required the full-time ABA placement and ABA hours at home for the parents to be able to manage him at home and for him to progress and learn the skills he’s been learning through
ABA. Given the level of severity and extent of his needs and given the insufficient and inadequate services that he was receiving when she evaluated him, he requires the school placement and at least 10 hours per week of ABA at home (T:28-29).[6]
The Student began attending the private school on October 13, 2022 (Ex. P-N-10, T:47). The Principal of the private school testified via affidavit that she has been employed in her position since 2015, holds a master’s degree in special education, is certified by the State of New York in both elementary and special education and has worked as a special education teacher for both the District and the private school (Ex. P-N-2). The private school is a private special education school focused on educating children aged 5 to 21 with autism spectrum disorder (“ASD”) and follows the NYS Common Core Standards (Ex. P-N-3,4).
The Student is in the private school’s 6:1:1 Behavioral, Academic and Social Enrichment (“BASE”) program which works with students with ASD and intellectual disabilities who require a significant level of support. The students require an individualized ABA program. Collaborative and Proactive Solutions (“CPS”) are also utilized in the classroom (Ex. P-N-7).
The Principal testified that she interacts with the student regularly at least three to four times per week, regularly consults with his teachers and therapists and monitors his progress. She described him as a severely disabled child who has made slow but steady progress since his admission to the program. Notably, he can sit and attend for longer periods of time and is more engaged. His maladaptive behaviors have decreased in frequency and severity (Ex. P-N10).
His schedule includes activities of daily living, class meeting[7], gym, math, social thinking, art, ELA and science/social studies (Ex. P-F). He receives the related services of: occupational therapy 3x30 1:1, speech and language therapy 4x30 1:1 and 1x30 2:1 and a full-time individual crisis management paraprofessional (Ex. P-N-10). She testified that 1:1 ABA therapy is essential for the Student to follow 1-step directions and that he receives intensive teacher and paraprofessional support in the classroom with ABA and components of discrete trial training (“DTT”) (Ex. P-N-11).
The private school conducted an FBA in December of 2022 (Ex. P-I). It also developed a BIP that targeted physical aggression, non-compliance, dropping to the floor and property destruction (Ex. P-J). The Student’s behaviors are observed when he is frustrated or asked to participate in an non-preferred activity. His crisis management paraprofessional is always nearby in school. The private school utilizes a token board, visual schedule and ABA strategies to ease his frustrations during transitions. Not only have his maladaptive behaviors decreased, but he has progressed on his academic goals. His ability to follow one step directions, trace letters and shapes, color objects, identifying numbers 1-10, 1:1 correspondence and counting and matching up to five objects has improved (Ex. P-N-11-12).
The Student’s expressive language is limited and he communicates through pointing, gestures and utilizing the approximation of the target word to express his wants and needs (Ex. P-N-13). He requires constant verbal, tactile and visual prompts to remain attentive. He is provided a sensory diet to assist with exposure and organization of sensory information which has helped him to calm his body and be more available for instruction (Ex. P-N-13-14). The Principal testified that she believes the private school is an appropriate placement for the Student (Ex. P-N-15).
The Student’s school day at the private school is from 8:30 am to 3:00 pm (Ex. P-F). The Parent testified that the private school in [REDACTED] is approximately 20 miles from her home in [REDACTED] and takes her 35 to 45 minutes to drive there depending on traffic (T:51-52). The Parent testified that the Student is picked up by the bus at 6:20 am and arrives to the private school at 8:45 am. He leaves school at 2:45 pm and arrives home between 5 and 6 pm (T:48). The Principal testified that his 2 hour each way bus ride is “grossly inappropriate” and contraindicated for him, especially due to his behavioral and attentional issues (Ex. P-N-11-12). The Parent testified that she has complained to the District’s Office of Public Transportation to no avail. She testified that the lengthy commute affects his behavior regulation (T:49). She testified that it is very hard for him when he gets home (T:51).
The Principal testified at the hearing that many of the students at the private school receive ABA hours at home after school. She stated the reasons may be that the student has severe autism and needs academic and behavioral support in the home, as well as the generalization of skills learned in school. Some students need home services to prevent regression (T:34-35). She testified that the Student was a high needs student in terms of his communication, behavior and academics and would progress more quickly if he received ABA at home and school (T:35). She did not reference the need for a home-based ABA program in her affidavit of testimony, but testified at the hearing that he would benefit and progress more quickly with a home program (T:38). Due to his newness to the school, she did not yet have any evidence of the Student regressing significantly during school breaks (T:39).
The Parent entered into a contract with the private school on October 11, 2022 for the remainder of the 2022-23 school year at a pro-rated tuition amount of $105,592.50 (Ex. P-E). The Parent has not yet made a payment (Ex. P-H). The Parent submitted the family’s joint 2021 tax return reflecting an adjusted gross income of [REDACTED] for the family of four (Ex. P-O).
Certified bilingual SETSS teacher [REDACTED] testified via affidavit that she has been providing 1:1 educational services for ASD students for the last eight years. She is familiar with the Student and worked with him when he was in preschool during the 2019-20 and 2020-21 school years. She testified that she was available to provide ten hours per week of SETSS/ABA instruction to the Student at home at the below prevailing market rate of $125 per hour (Ex. PP-2, T:41-43).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parent in order to meet her burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.
Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-
65).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement. Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Proof of inability to pay is not required to establish the propriety of direct retrospective payment of tuition or fees by a school district (Ferreira and Rojas v. New York City Dept. of Educ., 22 Civ 4993, 123 LRP 9785 [March 14, 2023 SDNY]).
With regard to the Parent’s request for funding for supplemental home-based services in addition to the funding of a unilateral placement, at least one federal courts have held that “the award of tuition reimbursement in this case does not necessarily mean that additional services, such as home-based ABA, are inappropriate” (V.W. v. New York City Dept. of Educ., 2022 U.S. Dist. LEXIS 147630 [S.D.N.Y. August 17, 2022] citing Doe v. Lyme Bd. of Educ., 790 F.3d 440, 445 [2nd Cir 2015]; see also C.L. v. Scarsdale Union Free School Dist., 744 F.3d 826, 838-39 [2nd Cir. 2014]). As to home-based services, the SRO has held citing to federal court decisions that a school district is not required to provide a home based program to generalize skills outside of school when a student is making progress in the classroom (See Application of the New York City Dept. of Educ., SRO Appeal No. 22-176).
With regard to missed services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123).
ANALYSIS
The facts as set forth in this record indicate that the District disregarded the prior IHO’s order to place the Student in a non-public ABA school setting for the 2022-23 school year, ignored the Parent’s September 30, 2022 DPC and failed to acknowledge or participate in the current hearing process despite notice. There is no evidence in this record of any District program or placement for this Student for the 2022-23 school year, let alone one consistent with the unappealed order of IHO Glasser. I find that the District has failed to demonstrate that it offered the Student a FAPE for the 2022-23 school year through its own inaction.
Turning to the private school program selected by the Parent, based upon a thorough review of the testimony and evidence, I find the Parent met her burden that the private school provided the Student with specific instruction to meet his extensive and unique special education needs. The private school provides him with specific strategies including: hand-over-hand assistance, physical prompting and redirection, direct and indirect verbal/gestures/visual/tactile cues and verbal reminders, constant repetition of learned skills, breaking down large complex tasks into simpler, more manageable parts, modeling of appropriate behaviors, direct, explicit and systematic instruction, establishment of clear routines and opportunities for breaks following sustained periods of cognitive engagement (Ex. P-N-11).The uncontroverted testimony reflects that in the short time he has been at the private school he has already made progress behaviorally, attending to task, following classroom routines and on his IEP goals (T:37-38, Exs. P-K, L and M). Such progress is commensurate with his disability. The private school is an appropriate unilateral placement, and the equitable considerations weigh in favor of the direct funding of the Student’s tuition costs.
I do not find that the record supports a finding that the Student requires an additional 10 hours per week of home based ABA in order to make meaningful educational progress. The Principal did not recommend a home-based program or the need to supplement the school program in her affidavit testimony (Ex. P-N). Rather, her testimony in response to questioning during the hearing was that he would progress “quicker” with additional home services or be able to generalize the skills to home (T:35). The testimony of the evaluator regarding the need for 10 hours per day of ABA was based upon an evaluation that was over a year old and did not take into account his current private school program.
I do find, however, that as a result of the District’s failure to timely recommend an appropriate placement for the Student, he should be compensated for the time between the beginning of the school year and his placement at the private placement on October 13, 2022 when he did not receive an appropriate educational program. To make up for the lack of a FAPE during this time period, I find that the Student is entitled to a bank of 150 (30 hours x 5 weeks) 1:1 ABA hours to be provided by a certified bilingual special education teacher selected by the Parent. The CSE will be able to assess the need for continuation of a home-based program at the Student’s annual review.
With regard to transportation, given the severity of the Student’s needs and behaviors and the testimony of the Principal and Parent, a one-way bus ride between home and school between 2 to 3 hours is improper and contraindicated for this Student. The Student’s transportation should be modified to insure that he arrives to school on time at 8:30 am and that he is able to stay until the completion of his school day at 3:00 pm to enable him to receive all required services. In addition, his ride should not exceed 60 minutes on average in either direction.[8] In addition to the negative consequences of such a lengthy ride given the Student’s disability, it is difficult to imagine how this child would be able to take advantage of his compensatory services arriving home at 6:00 at night.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDERED that the District shall pay the private school directly for the Student's
2022-23 school year tuition in an amount not to exceed one hundred five thousand five hundred ninety two dollars and fifty cents ($105,592.50) within 30 days of the date of this decision; and it is further
2. ORDERED that the District is directed to pay for one hundred and fifty (150) hours of 1:1 ABA by a certified bilingual special education teacher of the Parent’s choosing as compensatory education; and it is further
3. ORDERED that the District is directed to provide the Student with suitable transportation that enables the Student to arrive at the start of the school day and to remain in school for the full school day, and that such transportation shall not exceed sixty (60) minutes each way on average.
SO ORDERED.
DATED: March 27, 2023Lisa Rusk
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
IHO’S EXHIBITS
Exhibit Document Date Pages
I. Email chain to parties from IHO 1/17/23 to 1
2/15/23
PARENT’S EXHIBITS
NO. DATE NAME OF DOCUMENT # pp. ID/date EV/date
A 09/30/22 Due Process Complaint 5 2/16/23 2/16/23
B 01/05/22 Neuropsychological Evaluation 14 2/16/23 2/16/23 by [REDACTED], ABPP-CN
C 02/09/23 Affidavit of [REDACTED] 20 2/16/23 2/16/23
(Curriculum Vitae Attached)
D UNDATED [REDACTED] Brochure 2 2/16/23 2/16/23
E 10/12/22 Enrollment Contract 2 2/16/23 2/16/23
F 2022-2023 [REDACTED] Class Schedule 1 2/16/23 2/16/23
G 01/23/23 [REDACTED] Attendance Report 1 2/16/23 2/16/23
H 01/13/23 [REDACTED] Tuition Affidavit 1 2/16/23 2/16/23
I 12/09/22 Functional Behavioral Assessment 7 2/16/23 2/16/23
J 12/16/22 Behavior Intervention Plan 4 2/16/23 2/16/23
K 11/30/22 [REDACTED] Occupational Therapy 2 2/16/23 2/16/23
45 Day Progress Report
L 11/29/22 [REDACTED]Academic 45-Day Report 3 2/16/23 2/16/23
M 12/16/22 [REDACTED] Speech Therapy 2 2/16/23 2/16/23
45 Day Progress Report
N 02/09/23 Affidavit of [REDACTED] 15 2/16/23 2/16/23
O 02/25/22 1040 Parent’s Income Tax 2021 2 2/16/23 2/16/23
P 02/09/23 Affidavit of [REDACTED] 2 2/16/23 2/16/23
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] The decision of IHO Glasser was not introduced into the record.
[5] The Parent cited Section 504 of the Rehabilitation Act of 1973 in the DPC, but did not raise a distinct claim under Section 504 separate from those raised under the IDEA and therefore, no findings are made regarding Section 504.
[6] The evaluator admitted during questioning by the IHO that she has not seen the Student since January of 2022. She has never had any contact with anyone from the private school or reviewed any of the private school reports and has not been in contact with the parent since January 2022 (T:30).
[7] The classroom meeting is built into the schedule with the goal of providing students with the skills necessary to form and maintain friendships and other meaningful relationships (Ex. P-N-7).
[8] See Appeal of Reich, 38 Ed. Dept. Rep. 565 (1998) and Appeal of Joyce, 58 Ed. Dept. Rep. (2018) wherein the Commissioner of Education cites to a ride of 90 minutes as not excessive for a regular education student.