New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591176 - NYC: 242010

CASE NUMBER: 242010

FINDINGS OF FACT AND DECISION

Case Number: 242010

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: November 10, 2022

Date(s) of Hearing: December 16, 2022

January 18, 2023

February 14, 2023

March 15, 2023

April 6, 2023

April 21, 2023

April 27, 2023

May 1, 2023

Actual Record Closed Date: May 30, 2023

Date of Decision: June 12, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 16, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

January 18, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

February 14, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

March 15, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 6, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 21, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 27, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

REDACTED REDACTED, special education teacher

REDACTED REDACTED, unit coordinator, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

May 1, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

REDACTED REDACTED, educational director, REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about November 10, 2023. Ex. A.^[1] On November 14, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent challenges the Department’s alleged failure to offer REDACTED a free appropriate public education “FAPE”) for the 2022-2023 12-month school year and seeks funding and/or reimbursement for tuition for REDACTED at REDACTED (“REDACTED”) for the 2022-2023 12-month school year and funding for an independent evaluation. Ex. A at 4.

On December 14, 2022, I considered a request to consolidate this proceeding with another proceeding pending with respect to REDACTED’s special education and services. After hearing from the parties, I determined that it would not be appropriate to consolidate the two proceedings and issued a written Order to that effect. I scheduled the case for a prehearing conference on December 16, a date after the conclusion of the resolution period.

On December 16, Parent’s counsel appeared; the Department failed to appear. Parent’s counsel clarified the relief requested and reported that the Department was investigating the case for settlement. I continued the case to January 18, 2023, in order to permit the parties to consider settlement, resolve pendency through a pendency agreement, and prepare opening statements.

On January 18, Parent’s counsel appeared; the Department failed to appear. The Department was notified by email that it was in danger of default. Parent’s counsel presented an opening statement. The hearing was adjourned to February 14 for the hearing on the merits.

On February 14, counsel appeared for both REDACTED’s Parent and the Department. The Department requested an adjournment to continue to investigate the case for settlement; Parent’s counsel consented; and the matter was continued to March 15.

On March 15, counsel appeared for both REDACTED’s Parent and the Department. No progress had been made on settlement, but the Department was continuing its investigation. Parent’s counsel sought an adjournment for medical reasons; the adjournment was granted; and the case continued to March ^[31]; due to technical difficulties, the matter did not proceed on March

b. Is the recommended 6:1:1 class with a 1:1 paraprofessional for behavior support reasonably calculated to enable REDACTED to make meaningful progress?

i. By failing to recommend 1:1 teaching throughout the school day?

ii. By failing to expressly recommend ABA?

iii. By failing to appropriately address REDACTED’s behavioral needs?

c. Are REDACTED’s parents’ challenges to the Department’s recommended school placement justiciable?

2. Was REDACTED an appropriate placement for REDACTED for the 2022-2023 school year?

3. Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

1. REDACTED is a REDACTED year-old boy whose disability is classified, for the purposes of the IDEA, as autism. Ex. A at 1.

2. REDACTED has been diagnosed with REDACTED and REDACTED. Exs. G at 1, J at 10, K at ⁋ 2; Exs. 1, 5. He demonstrates pervasive and global delays in engagement, learning, communication, social skills, sensory processing and regulation, attention and focusing, anxiety, rigidity, and fine and gross motor skills. Exs. E, J; Exs. 1, 5; Tr. 149-150.

3. REDACTED manifests maladaptive behaviors that interfere with his learning. These behaviors include screaming, crying, yelling, punching, kicking, property destruction, and inflexible adherence to routines; he also engages in elopement in order to avoid learning tasks. Exs. E, J, K at ⁋ 2; Tr. 155.

4. In preschool, REDACTED was unable to sit and attend to tasks; he would run around the classroom. REDACTED was evaluated for special education and services; the CPSE recommended SEIT and related services for REDACTED. Even with SEIT and related services, REDACTED did not progress in a general education setting. Ex. K at ⁋ 3; Ex. 4.

5. REDACTED’s mother requested a special education placement from the Department; the CPSE recommended a special education placement, but instruction was remote due to COVID, and REDACTED regressed. Ex. K at ⁋ 3.

6. REDACTED’s parents placed REDACTED at REDACTED for the 2021-2022 school year. Ex. K at ⁋ 3. The Department’s March 30, 2022 IEP

7. REDACTED’s mother attended a CSE meeting on March 30, 2022. REDACTED’s mother participated in the meeting by telephone. Ex. K at ⁋ 5; Ex. 1 at 4; Ex. 15 at ⁋⁋ 5-6.

8. The CSE considered December 2019 psychological testing of REDACTED (Ex. 5), 2021 medical documentation (Ex. J), progress reports from REDACTED (Exs. 8-11), a REDACTED behavior intervention plan (Ex. 2), and a social history (Ex. 5). Ex. 1 at 1-6; Ex. 15 at ⁋⁋ 7-9.

9. At the meeting, REDACTED’s educational and behavioral challenges were discussed, and REDACTED’s mother requested both one-to-one instruction and ABA for REDACTED.

Tr. 103-104; Ex. K at ⁋ 5; Ex. 15 at ⁋ 9.

10. The IEP highlights REDACTED’s challenges with sustained attention, focusing, sensory processing, self-regulation, frustration tolerance, and engaging in behaviors that interfered with his learning. Ex. 1 at 1-7; see also Ex. 15 at ⁋ 9.

11. The IEP notes that REDACTED’s mother and REDACTED staff emphasized that REDACTED needed a “highly individualized academic program, with behavioral support in a small, 12-month classroom environment.” Ex. 1 at 4; see also Ex. 1 at 22.

12. The IEP notes that, at REDACTED, REDACTED was instructed utilizing ABA, 1:1 instruction, discrete trials, and individualized rewards (as reinforcement for positive behaviors and learned skills) and with a sensory integration and social-emotional curricula.

Ex. 1 at 2.

13. The written reports from REDACTED’s teacher and therapists at REDACTED recommended that REDACTED’s educational program “utilizes ABA methodologies and teaching via 1:1 instruction” with sensory supports and 1:1 related services. Ex. 8 at 4; see also Exs. 9 at 3, 10 at 3, 11 at 2, 12 at 6.

14. Department personnel acknowledged that they are not permitted to include ABA on an IEP. Tr. 103.

15. According to the Department’s District Representative (a special education teacher who chaired the IEP meeting), the IEP includes “principles of ABA” by including “explicit instruction in social skills, turn-taking, initiating/terminating conversation, asking questions, and social rules” and “rewards, positive reinforcement, verbal praise” in the “Management Needs” section of the IEP. Tr. 112-113. 16. The IEP provides for one-to-one reading instruction for REDACTED under “Management Needs.” Tr. 109. 17. The IEP specifies “Management Needs” for REDACTED, including, among others (Ex. 1 at 8): a. “Multi-sensory materials and one on one reading instruction are necessary for REDACTED to acquire reading skills.” b. “Hands-on materials . . . so that REDACTED can acquire new math skills.” c. Review and repetition to maintain learned skills. d. “Small groups for learning.” e. “Rewards, positive reinforcement and praise.” f. “Explicit instruction in social skills (e.g., turn-taking, initiating, terminating conversation, commenting, asking questions) and social rules.” 18. The IEP states that REDACTED needs a behavior intervention plan. Ex. 1 at 9. 19. The IEP includes goals on the areas of fine and gross motor skills, sensory processing, handwriting, speech and language, play and social skills, attention and behavior, early decoding skills, comprehension, counting and basic math concepts. Ex. 1 at 9-16. 20. The IEP includes a specific goal with reference to the recommended paraprofessional: REDACTED will rely upon cues, feedback and assistance from crisis paraprofessional, when necessary, to foster appropriate socialization and focusing skills in the classroom, with the goal in independently being able to conform to classroom norms and school rules. Ex. 1 at 14. 21. The CSE recommends that REDACTED attend a 6:1:1 special class in a District 75 school with the related services of counseling (one 30-minute session per week in a group of two students and one 30-minute session per week individually), occupational therapy (three 30-minute sessions per week individually), speech-language therapy (two 30-minute sessions per week individually and one 30-minute session per week in a group of two students), physical therapy (two 30-minute sessions per week individually), and parent counseling and training, and a full-time 1:1 “Paraprofessional Behavior Support.” Ex. 1 at 16-17; see also Ex. 15 at ⁋⁋ 10-12. 22. REDACTED’s mother disagreed with the above program recommendations. Ex. K at ⁋ 5. 23. The IEP recommends that REDACTED receive specialized bus transportation to and from school. Ex. 1 at 20. 24. The Department conducted a functional behavioral assessment and developed a behavior intervention plan for REDACTED dated April 25, 2022. Exs. 2, 3. The plan targets “non-compliance, hiding from others and elopement” and describes strategies and interventions to prevent the behaviors and to respond appropriately to the behaviors when they do occur. Ex. 2 at 1-5. 25. The Department’s District Representative who chaired the March 2022 IEP meeting opined that the recommendations in the March 2022 IEP were appropriate for REDACTED because he is a student with autism and ADHD who has deficits in academics, social skills, communication skills, sensory processing, fine and gross motor skills and who benefits from a small student/teacher ratio and individualized instruction. Ex. 15 at ⁋⁋ 4-5, 14. The District Representative explained that (Ex. 15 at ⁋⁋ 14-24): a. The IEP included 1:1 instruction, multi-sensory instruction, and “specific behaviorfocused strategies” for REDACTED. b. The 12-month program would prevent regression. c. The IEP goals would address REDACTED’s deficits. d. The CSE developed a behavior intervention plan based upon the reports and discussions at the IEP meeting. e. The paraprofessional would support REDACTED in improving his behavior and would assist him “to foster appropriate socialization and focusing skills in the classroom;” the IEP also included a behavior goal. f. The IEP includes counseling and counseling goals and strategies “to address his social emotional needs and improved his social learning behaviors.” g. The IEP includes occupational and physical therapies to address emotional and motor delays as well as sensory needs, and the IEP sets forth goals and strategies including utilizing sensory activities to assist with regulating emotional responses, working on fine motor strength and core strength, and improving hand writing. h. The IEP includes speech-language therapy and speech-language therapy goals addressing REDACTED’s expressive, receptive, and pragmatic language challenges, including developing ways for REDACTED to describe his emotional state. 26. The educational director of REDACTED opined that REDACTED requires ABA to address his needs and to make educational progress by breaking skills down into small steps, providing one-to-one instruction to teach those steps (and then reinforcing those steps appropriately), and providing behavioral support and reinforcement, all with data collection and review of that date to ensure that he is making progress, and, if not, adjusting his programming. Tr. 177-178; see also Tr. 180. 27. The educational director of REDACTED also opined that a 6:1:1 class was not appropriate for REDACTED because the class is too large and he would not receive the level of oneto-one teaching he needs. In a 6:1:1 class, REDACTED “would either space out, run away, and not pick up the skills in a functional manner . . . he really needs one-to-one in a nondistracting environment” in order to learn. Tr. 178. 28. The educational director of REDACTED also opined that a one-to-one paraprofessional for REDACTED, as recommended in the Department’s IEP, was not sufficient for REDACTED because “the one-to-one person has to be a trained instructor rather than just a para,” and she continued: “I’m familiar with the—sort of the job description of a para, and that would not be enough for him to make education progress. . . . he needs somebody to teach him one-to-one skills across the board, reading, math, social skills. Those skills need to be taught in a one-to-one nondistracting environment with the behavioral part in check, with the sensory needs met . . . with research-based interventions . . . in an ABA format” and that “[j]ust a para to be there sort of to support him behaviorally in a classroom environment is not—would not necessarily do that at all.” Tr. 182-183. 29. The IEP also recommends that REDACTED attend a 12-month program. Ex. 1 at 17. 30. There is no dispute that REDACTED needs a 12-month program in order to maintain the progress he made during the school year; without a program in place for July and August, he would lose his behavioral progress and learned skills. Tr. 152-153. He regresses after any long break from school. Tr. 153. The Department’s School Placement for REDACTED 31. REDACTED’s parents received a School Location Letter from the Department in April 2022. Tr. 138; Ex. 6 at 6. They contacted the school to arrange a visit; video tours were available, and REDACTED’s parents availed themselves of this opportunity and spoke with the school’s unit coordinator. Tr. 136-136, 138; Ex. K at ⁋ 6; Ex. 14 at ⁋⁋ 9-11. 32. Based on the video tour and the conversation with the unit coordinator, REDACTED’s parents concluded that the school was not appropriate for REDACTED because it was one hour away from their home, was too large for REDACTED and he would be “overwhelmed,” could not provide him with sufficient 1:1 instruction and behavioral supports, other students might distract REDACTED during his related services, and the school would not provide REDACTED with ABA. Ex. K at ⁋ 7. 33. The unit coordinator’s testimony established that, at the school, students have opportunities for daily one-to-one instruction. Tr. 121-123. 34. The unit coordinator’s testimony established that the school had the capacity to implement REDACTED’s IEP’s program of a 6:1:1 classroom, 1:1 paraprofessional, and related services and that the school had a sensory gym for occupational therapy sessions. Ex. 14 at ⁋⁋ 3-5, 8. 35. The unit coordinator’s testimony established that students in the 6:1:1 classes at the school participate in whole group instruction, small group instruction and 1:1 instruction. Ex. 14 at ⁋ 5. 36. The school had a seat available for REDACTED in a 6:1:1 at the beginning of the 2022-2023 12-month school year and had the capacity to implement his March 2022 IEP. Ex. 14 at ⁋⁋ 3-5, 8, 13-14. The REDACTED Program 37. During the 2022-2023 school year, REDACTED attended REDACTED. Ex. M. 38. REDACTED is a non-public special education school for children with autism and related disabilities. The school focuses on foundational skills for learning and providing individualized instruction, 1:1 teaching utilizing Applied Behavior Analysis^[2] (“ABA”) techniques, and related services. Tr. 146-147; Ex. D. 39. School personnel developed individualized educational programming and goals for REDACTED based upon assessments conducted at the beginning of the school year. Tr.160-161; see also Exs. D, F. 40. REDACTED participated in a class of six students, a certified special education teacher, and six 1:1 instructors. Tr. 150, 153. 41. His program focused on “all areas of development,” including academics, social-emotional learning, behavior, and ADL skills. Tr. 154; see also Ex. F. 42. At the beginning of the 2022-2023 school year, a REDACTED Board Certified Behavior Analyst (“BCBA”) observed REDACTED and collected data, and, with the collaboration of staff members working with REDACTED, developed a detailed and individualized behavior plan for REDACTED. Tr. 155; Ex. E. 43. The behavior plan addresses REDACTED’s tantrumming (screaming, crying, yelling, ripping paper, lying on the floor and crying) and inflexible adherence to routines and/or sameness. The behavior plan is implemented by all school staff who work with REDACTED. Tr. 156; Ex. E. 44. The behavior plan includes both proactive and reactive procedures: a. Learning is broken down into small steps to reduce his frustration; b. Sensory input to maintain his availability for learning; c. Positive reinforcement and breaks with motivating activities; d. Planned ignoring of attention seeking behaviors; e. Redirection back to tasks and/or positive behaviors; f. Problem-solving with REDACTED about alternative behaviors; g. Teaching REDACTED replacement behaviors; and h. Data collection to understand what strategies are working and modify the behavior plan as necessary. Tr. 156-157; Ex. E. 45. REDACTED receives one-to-one instruction and support throughout the school day. Academics and skills are taught one-to-one; during peer play, the instructors facilitate REDACTED’s play and encourage him to work on play skills and social skills and support him. During small group lessons, the instructor sits “behind him to follow up with his behavior plan and provide as much support as possible” to encourage his listening and participation. Tr. 153; see also Tr. 176. 46. REDACTED implements a social thinking curriculum designed for teaching social skills to children with autism spectrum disorders by breaking skills “down into very small steps” and teaches students to be flexible, to respond appropriately, and realize that their behavior affects other people and has consequences. Tr. 160-161. 47. REDACTED’s schedule at REDACTED (Ex. L) for the 2022-2023 school year included the following: a. OT group in the mornings for “massage,” which was described as “[d]eep proprioceptive and tactile input [a]ctivities to increase attention and arousal levels;” b. Morning Meeting for calendar, math, classroom, and conversation skills; c. Learning Time for core academic programs; d. Sensory Motor, in an OT group, for “[f]ocusing, rhythmic movement, bilateral coordination, and midline crossing;” e. Snack for ADL skills, table manners and social thinking; f. Morning Peer Play and afternoon Centers involving dramatic play, sensory activities, art, increasing imaginative play, and turn-taking skills; g. Physical education; h. Instructional lunch involving work on ADL skills, table manners and nutrition; i. Social Group; j. Group Lesson for content area instruction, social thinking, executive functioning, and language concepts; k. Additional OT group time for strengthening and other activities; and l. The school day ended with library and “self regulation tools.” 48. Reading decoding is taught using Orton-Gillingham, a multisensory program that incorporates much review and repetition, which REDACTED needs, to develop phonological awareness and foundational reading skills, along with developing a sight word vocabulary. Tr. 162; Ex. F at 2-3. 49. Reading comprehension was taught, in the beginning of the school year, with a shared reading program, with his teacher reading books to REDACTED, and REDACTED “filling in” certain words in the story and then answering basic comprehension questions. He is currently participating in a Fountas & Pinnell-based guided reading program. At the time of the hearing, he was on a level C. Tr. 162-164; Ex. F at 2-3. 50. In math, REDACTED worked on foundational math skills of identifying numbers, understanding numbers, recognizing patterns, and basic addition. Tr. 164. Ex. F at 3. 51. In the classroom, REDACTED also worked on his goals in the areas of social-emotional skills, conversational skills, play skills, ADL skills, executive functioning, and behavior. Ex. F at 4-7. 52. REDACTED provides REDACTED with the related services of speech, occupational and physical therapies, all provided by licensed therapists. Tr. 167. 53. REDACTED receives two individual and two group sessions of speech per week. Tr. 167.

The speech therapist worked with REDACTED on comprehension skills, identifying the main idea, sequencing, conversational skills, social skills, and increasing flexibility during play. Tr. 168; Ex. G. 54. REDACTED receives three individual sessions per week of occupational therapy supplemented by three daily sensory motor group sessions in his classroom. Tr. 169. The occupational therapist works with REDACTED on sensory processing and integration, ocular motor skills, fine motor strength, and executive functioning skills. Tr. 170; Ex. I. 55. REDACTED receives two group sessions per week, and one individual session per week as necessary, of physical therapy. Tr. 172. The physical therapist works with REDACTED on core strengthening, postural control, navigating stairs, and “skill-based sports.” Tr. 172; Ex. H. 56. REDACTED provided REDACTED with ABA programming, 1:1 instruction, a behavior plan, and related services, and he made progress. Tr. 168. 57. REDACTED made progress at REDACTED during the 2022-2023 12-month school year (Tr 151-152, 158, 161-163, 167, 169, 171; Exs. F, G, H, I): a. Developed phonological awareness, learned basic decoding skills (CVC words and blends), and increased his sight word repertoire; b. Improved reading comprehension; c. Improved understanding of math concepts; d. Improved attentional skills; e. Improved expressive language skills; f. Socially, through the social thinking curriculum and working with his speech therapist, he was more aware of his peers, started to include peers in his play, improved his conversational skills, and started to use his words (rather than lashing out physically) when he was upset; g. He became more independent with ADL skills, including personal care, dressing and mealtimes; h. Improved sensory processing and integration resulting in improved availability for learning, improved handwriting, and improvement in ADL skills in terms of fine motor skills (using utensils, dealing with fasteners on clothing); i. Behavior has improved: he is more available for learning, sitting, and participating in learning for longer periods of time, and elopement, frustration and tantrumming are reduced. Equities-Related Issues 58. REDACTED’s parents, through counsel, submitted a ten-day notice letter to the Department on June 16, 2022. Ex. C. In the letter, they explained their concerns with the Department’s IEP and proposed school placement for REDACTED. Ex. C. 59. REDACTED’s parents entered into an enrollment contract with REDACTED for the 2022-2023 12-month school year, from July 1, 2022, through June 20, 2023. Exs. N, O. The total tuition is $127,500.00. Ex. N at 1. 60. REDACTED’s parents have paid $500.00 towards REDACTED’s tuition at REDACTED for the 2022-2023 school year. Ex. O. 61. REDACTED’s parents are obligated to pay REDACTED the total tuition amount. Ex. N at 1, 5. REDACTED’s parents’ income is such that they are unable to pay the full amount at this time. Ex. P, Tr. 107.

CONCLUSIONS OF LAW

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982).

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school or the educational and related services selected by the parents are not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d). A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013). The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190; see also L.O., 822 F.3d at 123-124.

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition or services reimbursement for a unilateral placement, or services selected by the parent, has the burden of proof regarding the appropriateness of such placement, programming, or services. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. Did the Department offer REDACTED a FAPE for the 2022-2023 school year?

As stated above, an IEP developed by a school district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F., 137

S. Ct. at 999; see also Rowley, 458 U.S. at 207; T.M. v. Cornwall, 752 F.3d at 151, 160; R.E, 694 F.3d at 189-90. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). Did the CSE have the necessary evaluative material to develop an IEP for REDACTED?

REDACTED’s parents allege that the Department failed to rely on sufficient evaluative materials to develop REDACTED’s IEP. Ex. A at 2. In order to effectuate the purposes of the IDEA, the statute places an affirmative obligation upon state and local educational agencies, such as school districts, to identify, locate and evaluate all children with disabilities residing in the state. 20 U.S.C § 1412(a)(3)(A); 34 C.F.R. § 300.111(a); 8 N.Y.C.R.R. § 200.2(a); Handberry v. Thompson, 219 F. Supp. 2d 525, 540 (S.D.N.Y. 2002), aff’d, 436 F.3d 52 (2d Cir. 2006). As stated above, an appropriate educational program “begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” Application of a Child with a Disability, Appeal No. 07-010; see also 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2).

The New York State regulations carefully spell out the requirements for evaluations of students with disabilities. 8 N.Y.C.R.R. § 200.4(b). The CSE must address the results of an evaluation in a meeting to develop the student’s IEP. The goal of the entire evaluation process (whether an initial evaluation of a student or a subsequent reevaluation) is to enable the CSE to create an appropriate IEP for the student. See, e.g., D.S. v. Trumbull Bd. of Educ., 975 F. 3d 152, 157 (2d Cir. 2020) (“Trumbull”); L.O. v. New York City Dept. of Educ., 822 F.3d 95, 109-111 (2d Cir. 2016); A.R. v. Norwalk Board of Education, 183 F. Supp. 2d 534, 549 (D. Conn. 2002); Application of a Student with a Disability, Appeal No. 10-033 at pp. 30-32.

An evaluation includes “any procedures, tests or assessments used selectively with an individual student . . . as may be necessary to determine whether a student has a disability and the extent of his/her special education needs.” 8 N.Y.C.R.R. § 200.1(aa). The purpose of an individual evaluation is “to gather relevant functional, developmental and academic information about the student that may assist in determining . . . the content of the student’s [IEP], including information related to enabling the student to participate and progress in the general education curriculum.” 8 N.Y.C.R.R. § 200.4(b)(1). An evaluation must also include data to determine the student’s “present levels of academic achievement and related developmental needs,” whether the student needs special education, and whether the student needs additions or modifications to special education services. 8 N.Y.C.R.R. § 200.4(b)(5)(ii)(a)-(d) (emphasis added). Furthermore, students must be “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and the evaluation must be “sufficiently comprehensive to identify all of the student's special education needs, whether or not commonly linked to the disability category in which the student has been identified.” 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); see also Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17.

In other words, a school district’s evaluation of a student must be “comprehensive.” Trumbull, 975 F.3d at 157, 163; see also 20 U.S.C. § 1414(b) & (c). The information available to, and utilized by, the CSE at the IEP meeting was extensive and detailed. It consisted of psychological testing, medical documentation, and reports from REDACTED as well as input from REDACTED staff and REDACTED’s mother during the discussions at the IEP meeting. This set of evaluative material and information about REDACTED and his learning encompassed all identified areas of his disability at the time of the CSE meeting: cognitive, academic, fine and gross motor, sensory, attentional, communication, and behavioral. Furthermore, it is clear from the testimony at the hearing and the body of the IEP itself, that this evaluative material and information was discussed, considered, and incorporated into the IEP and discussed and considered in the formulation of the recommendations therein. See ⁋⁋ 8 through 13, above.

As a result, the Department, at the hearing, demonstrated that it relied on sufficient evaluative materials and information to develop its IEP for REDACTED. Is the recommended 6:1:1 class with a 1:1 paraprofessional and related services reasonably calculated to enable REDACTED to make meaningful progress?

Department must demonstrate, by a preponderance of the evidence, how its program for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances. The Department meets this burden with the testimony of the District Representative and the documents admitted in evidence. REDACTED manifests a unique constellation of identified special educational needs in the areas of cognition, academics, socialemotional skills, behaviors with interfere with his learning, attention, fine and gross motor skills, communication skills, and sensory processing. The evidence demonstrates that the March 2022 IEP provides REDACTED with a small class setting, one-one-one instruction for reading, a 1:1 paraprofessional for behavioral, social skills, and attentional support as well as a behavior intervention plan and a host of strategies and interventions—including ABA-type strategies and interventions—to support his learning. See ⁋⁋ 15-21, 25 above. The IEP also includes goals in REDACTED’s areas of deficit, including, among other goals, specific goals relating to paraprofessional support for behavior, social skills, and attention and relating to communication skills to support him in expressing his emotions constructively. See ⁋⁋ 20, 25 above. The IEP recommends the related services of speech-language, occupational and physical therapies to support REDACTED’s learning. See ⁋⁋ 21, 25 above.

REDACTED’s parents argue that the Department denied REDACTED a FAPE by failing to recommend 1:1 teaching throughout the school day, by failing to expressly recommend ABA therapy, and by failing to appropriately address REDACTED’s behavioral needs. These three issues are interconnected and go to essential components of the IEP’s delivery of specialized instruction and behavioral supports for REDACTED. I do consider the testimony and/or reports of REDACTED staff opining that REDACTED needs 1:1 teaching throughout the school day and ABA therapy and that “just” a paraprofessional is not sufficient for REDACTED. See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252 (2d Cir. 2012) (importance of evidence from individuals who knew and worked with student); S.B. v. New York City Dep’t of Educ., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (S.D.N.Y. Jun. 25, 2015) (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student). And I discount as irrelevant Department testimony that ABA cannot be placed on an IEP. See 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

That being said, and with respect to the claim that REDACTED needs 1:1 instruction throughout the school day, I find, based upon the totality of the record (including the testimony of the District Representative and the documentary evidence) that the Department’s IEP program (as described above) is sufficiently intensive to meet REDACTED’s learning needs. With one-to-one instruction for reading and with the support of the fulltime 1:1 paraprofessional in the small class setting of six students with one special education teacher and one classroom assistant/paraprofessional, the IEP is “reasonably calculated” to address REDACTED’s needs. This case is dissimilar to, for example, C.F. v. New York City Department of Education, 746 F.3d 68, 81 (2d Cir. 2014) and R.E., 694 F.3d at 194, where the students’ IEPs were found to be substantively inadequate where reports emphasized that the students needed very high levels of support and where no 1:1 support was included in the students’ IEPs. Here, the IEP provides for both one-to-one reading instruction and a fulltime 1:1 paraprofessional for REDACTED.

As to ABA therapy, there is no requirement that an IEP set forth any particular methodology for a student. A methodology should be placed on an IEP if that is what a child needs to learn. See 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added). Here, while the CSE did not expressly state “use ABA” on REDACTED’s IEP, the CSE did include in REDACTED’s IEP “principles” of the ABA methodology, such as “explicit instruction in social skills, turn-taking, initiating/terminating conversation, asking questions, and social rules” and “rewards, positive reinforcement, verbal praise” as well as a behavior intervention plan.^[3] See ⁋⁋ 15, 18, 24-25, above.

The IEP also provides significant services and supports to address REDACTED’s behavioral needs, including, as previously stated: a small special education class, a fulltime 1:1 paraprofessional, a behavior intervention plan, various management needs, and behavior-related goals. The REDACTED witness opined that the Department’s 6:1:1 class was too large for REDACTED. It is difficult to credit this particular portion of her testimony because REDACTED was in a class of six students at REDACTED, and, according to the witness, was learning in such a classroom. The REDACTED witness also criticized the suitability of a paraprofessional for REDACTED because “just a para” for behavior support was not sufficient for REDACTED. There is no “just a para” on the IEP: rather, the IEP provides for a fulltime 1:1 paraprofessional for behavior, attention, and social skills support. REDACTED needs such support, and it should not be presumed that the Department would not implement the support of the paraprofessional, as that support was delineated in the IEP, should REDACTED have attended a Department placement for the 2022-2023 school year.

As the above discussion demonstrates, the Department’s IEP sets forth instruction, services and supports to meet REDACTED’s special educational needs. The Department’s IEP may meet those needs via means different than the means utilized at REDACTED, but those differences do not necessarily compel a conclusion that the Department’s IEP is not “reasonably calculated” to address REDACTED’s educational needs. See Application of a Student with a Disability, Appeal No. 23-005 at pp. 14, 16. The preponderance of the evidence demonstrates that the Department’s intensive, individualized, and detailed IEP program was “reasonably calculated” to permit REDACTED to make progress. Are REDACTED’s parents’ challenges to the Department’s recommended school placement justiciable?

As stated above, a school district must implement the student’s IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3). See also B.R. ex rel. K.O. v. New York City Dep’t of Educ., 910 F. Supp. 2d 670, 678-679 (S.D.N.Y. 2012). As the Second Circuit has explained, challenges to a recommended school placement must be based upon non-speculative allegations that the placement is unable to implement the student’s IEP. M.O. V. New York City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015). As the State Review Officer has elaborated, “[i]n order for such challenges to be based on more than speculation, a parent must allege that the school is ‘factually incapable’ of implementing the IEP.” Application of a Student with a Disability, Appeal No. 23-005 at p. 17 (and cases cited therein).

In the instant case, REDACTED’s parents allege that the Department’s recommended placement: (a) is more than one hour away from their home; (b) too large a school setting for REDACTED; (c) cannot provide the “amount of 1:1 individualized attention and instruction” that REDACTED needs; (d) does not have ABA; and (e) some related services might be provided in rooms with other students. Ex. A at 3-4.^[4] None of these challenges are justiciable under the current case law. The distance to the school is unfortunate; but limited time travel is not mandated in the IEP. As a result, this challenge does not implicate a failure to implement the IEP. As to the school as “too large” for REDACTED, again, this challenge does not implicate a failure to implement the IEP. The quantity of 1:1 and ABA instruction are IEP issues (as discussed above); again, these challenges do not implicate a failure to implement the IEP.^[5] Furthermore, while REDACTED might receive some related services in a room where other students are present, it is speculative that the presence of other students would deprive him of benefiting from related services and that related services would not be effectively implemented for REDACTED. As a result, REDACTED’s parents do not prevail with respect to their challenges to the Department’s recommended school placement.

The documentary and testamentary evidence in this record demonstrates that the CSE developed an IEP for REDACTED that accurately reflected his functioning levels and learning needs based upon sufficient evaluative material and input at the IEP meeting. IEP includes goals relating to REDACTED’s identified special educational needs. In addition, the Department’s witness clearly and credibly explained how the special educational programming, services, and supports recommended in the IEP addressed REDACTED’s needs. As a result, the preponderance of the evidence demonstrates that the IEP was “reasonably calculated” to address REDACTED’s unique learning needs and circumstances. See Endrew F., 137 S. Ct. at 999 (IEP developed by district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”). The Department thus prevails on the first “prong” of the Burlington/Carter test. Was REDACTED an appropriate placement for REDACTED for the 2022-2023 school year?

Despite the findings in the Department’s favor on “prong I,” this decision proceeds to consideration of “prongs” II and III of the Burlington/Carter test in order to fulfill the responsibilities of an Impartial Hearing Officer to consider the evidence and make findings on the relevant aspects of a reimbursement case.

REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED’s program for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, REDACTED’s parents must show that the educational services provided by REDACTED addressed REDACTED’s identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order). Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that REDACTED’s program provided REDACTED with an educational program in which his complex constellation of identified and significant special education needs was addressed. In particular, the record is clear that REDACTED needed the behavioral and other supports that school personnel provided to him in the classroom and the related services provided by REDACTED. See paragraphs 38 through 56 above. REDACTED has made progress during the 2022-2023 school year. See paragraph 57 above. REDACTED has made progress across the range of his significant and varied autismrelated challenges, demonstrating that REDACTED provided him with an appropriate special education program. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir.

2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that REDACTED’s program was appropriate for REDACTED for the 2022-2023 school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion. The Equities

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s mother cooperated with the CSE by attending and participating in the CSE meeting, learning about the school proposed for REDACTED, communicating with Department personnel about her concerns, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although REDACTED’s parents have paid only a small portion of the REDACTED tuition, the debt for the full amount of the tuition is very real. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment (rather than reimbursement) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents have the financial wherewithal to “front” the entire amount of the private school tuition and subsequently seek repayment from the school district.

Equitable considerations thus favor the award of relief to REDACTED’s parents. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

At hearing, REDACTED’s parents did not pursue the claim for funding for an independent evaluation. As a result, this claim is deemed abandoned and is dismissed.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED:

REDACTED’s Parents’ requests for relief are denied.

SO ORDERED.

DATED: June 12, 2023

Jean Marie Brescia, Esq.

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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENTS’ EXHIBITS

A. Exhibit Date Title Number of Pages Impartial Hearing Request 11/10/2022 11/10/2022 4 pages

C. Ten Day Notice Letter and Email Confirmation 06/16/2022 3 pages

D. Program Description 2022-2023 4 pages

E. Behavioral Intervention Plan 2022-2023 6 pages

F. Educational Progress Report January 2023 7 pages

G. Speech Therapy Progress Report January 2023 3 pages

H. Physical Therapy Progress Report January 2023 4 pages

I. Occupational Therapy Progress Report 02/02/2023 3 pages

J. Developmental Pediatrics Evaluation 02/06/2021 11 pages

K. Testimonial Affidavit of Parent 01/31/2023 5 pages

L. Daily Schedule 1e 2022-2023

M. Attendance Record 2022-2023 1 page

N. Enrollment Contract 06/22/2022 5 pages

O. Affidavit of Payment 01/24/2023 1 page

P. U.S. Individual Income Tax Return 2021 2 pages

DEPARTMENT EXHIBITS

1. Exhibit Dated Description Pages Individualized Education Plan 3/30/2022 23 pages DOE

2. Behavioral Intervention Plan 4/25/2022 8 pages DOE

3. Functional Behavioral Assessment 4/25/2022 7 pages DOE

4. DOE Social History Update 3/8/2021 2 pages DOE

5. EvalCare Psychological Evaluation 12/11/2019 7 pages DOE

6 Prior Written Notice 7/19/2022

7 13 pages DOE

8. REDACTED Educational Progress Report 1/2022 4 pages DOE

9. REDACTED Occupational Therapy Progress Report 1/21/2022 3 pages DOE

10. REDACTED Physical Therapy Progress Report 2/11/2022 3 pages DOE

11. REDACTED Speech Therapy Report 1/2022 2 pages DOE

12. REDACTED Behavior Intervention Plan Undated 6 pages DOE

13. Notice of IEP Meeting 3/15/2022 3 pages DOE

14. Affidavit of REDACTED REDACTED, REDACTED 3/24/2023 5 pages DOE

15. Affidavit of REDACTED REDACTED, REDACTED 3/27/2023 6 pages DOE

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”

[31] and was convened on April 6 for a status conference. On April 21, opening statements were presented, and Parent’s Exhibits A and C through P and Department’s Exhibits 1 through 6 and 8 through 15 were admitted in evidence. On April 27, the Department’s witnesses, a special education teacher and the unit coordinator of the placement proposed for REDACTED, testified. The Department rested its case. The hearing was completed on May 1 with the testimony of REDACTED’s mother and the educational director of REDACTED. Counsel presented closing statements. The parties requested extensions of the compliance date, and written Orders of Extension were issued on January 18, February 14, March 15, March 31, and May 1, 2023. The reasons for granting the extensions are set forth in the Orders. The record was closed on May 30, 2023, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing. JURISDICTION The due process hearing was held, and a decision in this matter is now 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. Part 300, and New York State Education Law § 4404, and its implementing regulations, 8 N.Y.C.R.R. Part 200. REDACTED’s Parent consented to the conduct of the hearing by videoconference and the transmission of this decision by email. ISSUES REDACTED’s Parent requests funding for tuition at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing. The issues to be resolved are: 1. Did the Department offer REDACTED a FAPE for the 2022-2023 school year? a. Did the CSE have the necessary evaluative material to develop an IEP for REDACTED?

[2] REDACTED’s Educational Director described ABA. Tr. 147-148.

[3] This evidence does not constitute “retrospective testimony” barred by the Second Circuit in R.E. These items were expressly included in the IEP; the Department’s witness, in her testimony identified the items as set forth in the IEP; she did not add any items (which would have constituted impermissible “retrospective testimony”).

[4] Various additional challenges listed in the DPC were not addressed at hearing and are not considered in this decision.

[5] The items listed on the IEP and specified by the District Representative as “principles” of ABA (see ⁋⁋ 15, 17) are educational strategies, interventions, accommodations, and techniques that a special education teacher can implement. Furthermore, it cannot be presumed that the placement school would disregard the mandates of REDACTED’s IEP.