New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243064

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Educ. District

REDACTED

Impartial Hearing Officer: Cynthia M. Lindblom

Date of Filing: 11/30/2022

Hearing Requested by: REDACTED (“Parents”)

Date of Hearing: 7/18/2023

Record Close Date: 8/14/2023

Date of Decision: 8/14/2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 18, 2023

For the Student:

REDACTED Esq., REDACTED, P.C.

REDACTED, Assistant Principal

REDACTED, Student’s REDACTED (“Parent 1”)

For the Department of Education:

REDACTED, Agency Attorney Interne

BACKGROUND

The Parents ^[1], through counsel, filed a Due Process Complaint (“DPC”) on or about November 30, 2022. In the Request, Parents alleges that the Department of Education (“DOE” or “District”) failed to offer Student a free and appropriate public education (“FAPE”) for the 2021-2022 school year (Ex. A). ^[2]

Parents allege, among other things, that the Individualized Education Program (“IEP”) was substantively and procedurally deficient under federal and state law described with more particularity in the DPC, and that DOE failed to properly develop an IEP that was appropriate for Student. Parents also alleges that the recommendations in the IEP were not appropriate. (Id.).

By way of relief, Parents seek an award of both tuition reimbursement and direct funding for Student’s attendance at Private School during the 2021-2022 school year. In light of the foregoing and as more fully discussed below, I find that: a) DOE failed to provide Student with a FAPE for the 2021-2022 school year, b) Private School provides educational instruction specifically designed to meet Student’s unique needs, and c) equities support the Parents’ requested relief.

PROCEDURAL HISTORY

I was appointed impartial hearing officer (“IHO”) for this case on May 31, 2023. An initial prehearing conference was held on June 14, 2023. A due process hearing was held on July 18, 2023. The compliance date in this matter is currently August 14, 2023. A list of exhibits admitted into evidence is attached hereto. Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.

FINDINGS OF FACT AND DECISION

I make the following findings of fact and determinations: Student is a REDACTED child 3 who is classified by the DOE’s Committee on Special Education (“CSE”) as a student with autism (Ex. B at 1) and their classification is not in dispute. Student’s IEP, dated May 4, 2021, recommended placement at a DOE Specialized School with a class ratio of 8:1+1 as well as related services of Counseling (group), Counseling (individual), Occupational Therapy (“OT”) (individual), Physical Therapy (“PT”) (individual), Speech-Language Therapy (“SLT”) (individual), and Parent Counseling and Training (Ex. B at 13-14). In addition, the CSE recommended extended school year services during the months of July and August (Id. at 20).

The CSE considered a special class in a specialized school with a 6:1:1 class ratio, but rejected this option as being too restrictive for Student at the time (Ex. 1 at 2). The CSE considered the following documents when developing Student’s IEP: OT progress report, dated 1/21/2021; PT progress report, dated 1/21/2021; SLT progress report, dated 1/21/2021; Teacher report, dated 1/21/2021; and Student’s portfolio, dated 5/4/2021. Id.

“Private School offers school age students with special educations needs a comprehensive and nurturing educational environment” (Ex. N). Private School is an allinclusive program that provides related services on site, such as OT, PT, SLT and play therapy; small student/teacher ratios; ability to work individually and in small groups; and differentiated instruction to meet each child’s learning needs. Id. During the 2021-2022 school year, Private School had 16 students in attendance that were placed into^[3] special education classrooms (Ex. R at 2).

Private School employs special education teachers, classroom assistants, related services therapists, and paraprofessionals, all of whom attend multiple trainings per year (Ex. R at 15). Student’s teacher holds a master’s degree in special education and is a New York State certified special educator (Ex. R at 4).

Student attended Private School for the 2021-2022 school year and was placed in a classroom with a total of 5 students, 1 teacher, 1 teacher’s assistant and Student’s own paraprofessional (Tr. 50-51).^[4] Student was grouped with other students of similar age and function level (Tr. 44). Student was assigned a paraprofessional to assist with their attention and focus issues that were apparent when Student attended Private School during the 2020-2021 school year (Tr. 44). Student received one-to-one individualized attention from their classroom teacher in the core academic subjects such as reading, writing, and math (Tr. 51).

Assistant Principal has worked at Private School since September 2021, holds a master’s degree in education, and is a Board Certified Behavior Analyst (Ex. R at 1). As part of their duties and responsibilities, Assistant Principal oversees the entire educational program, trains staff, develops curricula, supervises teachers, observes students, communicates with parents, and coordinates team meetings (Ex. R at 2). In addition, Assistant Principal will provide Behavior Consultation services for students with more involved behavioral needs and develop behavior plans (Ex. R at 1-2).

Given Student’s interfering behaviors, Assistant Principal provided them with behavioral consultant services during the 2021-2022 school year (Tr. 57; Ex. P). Assistant Principal developed a Behavioral Intervention Plan (“BIP”) which utilized a rewards system to motivate Student to engage in appropriate behavior (Ex. R at 5; Tr. 45-46). Student’s paraprofessional provided the necessary reinforcement to implement the BIP and enable Student to function in the classroom (Tr. 52-53; 56). Assistant Principal worked on overcoming Student’s emotional dysregulation on a weekly basis, either in the classroom or through pull out services (Tr. 57-58; 60).

At the start of the 2021-2022 school year, Student presented with delays in academics, required a lot of support for instruction, distracted easily, and struggled with sensory processing and motor skills (Ex. R at 4). To address these deficits, Private School employed the following methods: Visual supports, prompting, and redirection; frequent scheduled breaks; and multi-sensory instruction for all academics (Ex. R at 5).

As a result, Student showed progress in the following areas: Student improved their handwriting and learned to write simple sentences; Student could answer questions about stories they read independently; Student could identify and name the consonants and short vowels; Student could also read 50 sight words and point to the words; Student could add and subtract numbers 0-10 and work on simple word problems; Student improved their social interactions with peers and could collaborate on small projects (Ex. R at 6-15).

All of Student’s related services were provided by Private School during the 2021-2022 school year by licensed and/or certified therapists in their respective disciplines (Ex. R at 10). Student received individual OT, three sessions a week, 30 minutes per session, as well as one 30-minute group session per week. Id. These sessions addressed deficits in the areas of Student’s fine motor/graphomotor skills, scissor skills, sensory processing, balance and coordination, bilateral coordination, strength and endurance. Id. Student received individual PT sessions, twice a week,^[30] minutes per session, as well as one weekly PT gym session (Id. at 11). Student showed steady improvement in all areas of deficit including balance, coordination, motor planning, strength, and endurance. Id. Student received individual SLT sessions twice a week,

LEGAL STANDARDS AND ANALYSIS

Burden

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 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)).

Prong I

The IDEA provides that children with disabilities are entitled to a FAPE. See 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 Individualized Education Program (“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, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at hearing. They did not present any witness testimony (Tr. 15-16; 32-33). Instead, the DOE presented documents and argued that exhibits alone were sufficient to provide Student with a FAPE for the 2021-2022 school year (Tr. 16; 27; 33). In support of their argument, DOE cited to Application of a Student with a Disability, Appeal No. 19-054 and Application of a Student with a Disability, Appeal No. 23-054.

In limited cases, documents alone may be sufficient to prove the appropriateness of the CSE’s recommendations. See, L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-090 and 19-054. An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance ^[5], 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 ^[6], and provides for the use of appropriate special education services. ^[7]

Here, DOE submitted a Prior Written Notice (“PWN”), dated August 24, 2021, which cited several documents which the CSE “reviewed and discussed” and “used in the decision” to make the recommendations in the IEP (Ex. 1 at 2). These documents included an OT Progress Report, dated January 21, 2021; a PT Progress Report, dated January 21, 2021; a review of Student’s Portfolio, dated May 4, 2021; a Speech and Language Progress Report, dated January 21, 2021; and a Teacher Report, dated January 21, 2021. Id. All of the aforementioned documents were offered into evidence by DOE, except for Student’s Portfolio.^[8] In addition, the DOE submitted a School Location Letter, dated August 24, 2021 (Ex. 1 at 4). There were no minutes submitted from the May 4, 2021, IEP meeting.

This is not one of the rare cases in which documentary evidence alone is sufficient to establish the appropriateness of the relevant IEP. Parents made several allegations in the DPC that require more evidence than the DOE’s documents alone provide. For instance, Parents raised a claim that DOE’s 8:1:1 special class would not provide Student with the individualized instruction and support and proper small group instruction that they needed (Ex. A at 3). Private School placed Student is a classroom with 4 other students that were similarly classified with the assistance of a teacher, teacher assistant and paraprofessional; (Tr. 43; 51). Assistant Principal testified that Student required this amount of structure and support to function in a classroom. This enabled Student to receive one-on-one instruction from both their teacher and paraprofessional with respect to the core academics (Tr. 51).

In addition, Parent’s DPC claimed the IEP lacked sufficient behavioral support, including the need for a paraprofessional.^[9] Assistant Principal testified that at the start of the 2021-2022 school year, due to Student’s behavioral issues, Student needed reinforcement from their paraprofessional every minute and a half to two minutes, as compared to the end of the school year when that time extended to three to four minutes (Tr. 52-53).

The DPC clearly states that Student “presents with delays in reading, math, and writing in addition to language deficits, fine motor and sensory processing, gross motor and behavior management that warrants the support of a highly structured setting” (Ex. 3 at 5). Yet, there is no explanation as to how the 8:1+1 ratio, and lack of paraprofessional support, would have been sufficient to establish the appropriateness of the IEP.

I credit Assistant Principal’s testimony and find that Student would have likely struggled in an 8:1+1 classroom and would not have made appropriate progress without the additional support of a paraprofessional. I further find that DOE’s documentary evidence does not counter all the allegations in the due process complaint. The DOE should have provided “cogent and responsive” testimony as to why it was appropriate for the CSE to rely only on the documents that the DOE produced at hearing, and why the IEP developed on that basis was appropriate. Absent an explanation for their decisions, I find the the weight of the evidence supports the conclusion that DOE failed to offer Student an educational program reasonably calculated to offer a FAPE for the 2021 – 2022 school year.

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112). “Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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).

In terms of educational benefits, I credit the testimonies provided by Assistant Principal and Parent 1 regarding Student’s progress during the 2021-2022 school year. According to Assistant Principal, Student made progress across the board academically, socially, physically, and behaviorally (Ex. R at 7-15). The results were noted on Student’s Annual Goals and Progress Report for the 2021-2022 school year (Ex. E). In terms of Math, Student reached a level of “Mastered” in all 5 goals (Ex. E at 1-2).^[10] In terms of Reading, Student reached a level of “Mastered” in all 6 goals (Id. at 2-3).^[11] In terms of Science, Student reached a level of “Mastered” in all 4 goals (Id. at 3-4).^[12] In terms of Social Studies, Student reached a level of “Mastered” in all 3 goals (Id. at 4-5). In terms of Social and Behavioral Skills, Student reached a level of “Mastered” with respect to half of these goals (Id. at 5-8).^[13] Finally, in terms of OT and PT, Student either “Mastered” their goals or made “Moderate Progress” (Id. at 8-12).

According to Parent 1, Student showed steady progress including advances in their academics, general comprehension, and behavior (Ex. S at 3). In addition, Parent 1 saw improvements with Student’s focus and play skills and was pleased with the progress made by Student during the 2021-2022 school year. Id.

Based upon the evidence and testimony presented at the hearing, the undersigned finds Private School provided Student with educational instruction specifically designed to meet Student’s unique needs during the 2021-2022 school year. Furthermore, in reviewing the hearing record, the weight of the evidence establishes that the instruction offered by Private School was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that DOE offered limited arguments concerning the appropriateness of Parents’ unilateral placement.^[14] I have considered these arguments and reject them. Under these circumstances, the undersigned finds that Parents have met their burden under Prong II of the Burlington/Carter standard.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parents provided the necessary Ten-Days’ Notice of their concerns with DOE’s offer of FAPE for Student for the 2021-2022 school year (Ex. C). Therein, Parents detailed specific concerns (Id. at 1). Parents also gave DOE notice of their intention to unilaterally place Student at Private School. (Id. at 2). No evidence was submitted at the hearing describing DOE’s response to the Ten-Day Letter.

By way of relief, Parents seeks a combination of tuition reimbursement and direct funding for the 2021 – 2022 school year. Parents’ attorney submitted a 2021 – 2022 Tuition Contract with Private School which calculated a base tuition of $98,000.00 15 plus the cost of a 1:1 paraprofessional, that being $27,000.00, for a combined total of $125,000.00. (Ex. P at 1). In addition, Parents’ attorney submitted an Addendum to the 2021-2022 Tuition Contract which showed Student received Behavioral Consultant services during the 2021-2022 school year at a cost of $9,975.00 (Ex. P at 2). Lastly, Parents’ attorney submitted an affidavit from Executive Director (Ex. Q), employed at Private School, who is familiar with the tuition paid on behalf of Student. The affidavit states, “the total contracted annual tuition rate is $134,975.00.” Id. The contracted amount includes the combined cost of the base tuition, that being $98,000.00; the cost of the private paraprofessional, that being $27,000.00; plus, the cost of the Behavioral Consultant services, that being $9975.00. The affidavit further states that Parents made several payments to Private School between August 6, 2021, and June 22, 2022, for a total amount of $5,000.00. Id. Thus, in terms of tuition reimbursement, Parents will be entitled to the amount of $5,000.00.

Parents also seeks direct funding to Private School for part of the tuition costs of the 2021 – 2022 school year. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). Parent 1 testified that they had financial difficulties which prevented them from paying the entire tuition for the 2021-2022 school year (Ex. S at 4). Parent 1 earned a salary in the mid-$50,000 range, which decreased in 2017, and decreased further during COVID. Id. Parent 2 is not employed outside the home and there are 2 minor children, in addition to Student, living with Parents. Id. Based upon Parent 1’s

This figure includes the costs of the related services of OT, PT, SLT, and Counseling (Ex. P at 1). uncontroverted testimony, I find that Parents would be unable to afford the unilateral tuition costs; therefore, equity demands that DOE fund Student’s Private School tuition in this instance.

Having found direct funding appropriate, the DOE raised in their opening statement and closing argument the equitable consideration that any tuition awarded should be reduced proportionately by the percentage of religious instruction Student received (Tr. 28; 68). According to Assistant Principal, a small portion of Student’s curriculum is devoted to religious instruction (Ex. R at 6). Student had 5 minutes of Prayers each morning as well as 4 weekly periods of “Holidays/Customs” class. Id. Overall, Student’s schedule included 145 minutes of religious instruction per week out of a total of 1,990 minutes. Id. This amounted to approximately 7.29% of the 2021-2022 school year devoted to religious studies. Id.

In general, school districts are not required to fund religious portions of the school day or services that go beyond what is necessary to provide a FAPE or provide religious instruction. See, L.K. v. New York City Dep’t of Educ., 69 IDELR 90 (2d Cir. 2017). See also, Leiman v. Smith, 70 IDELR 142 (4th Cir. 2017) (“the IDEA does not mandate that a school instruct a student in his preferred religious practices”). Here, the tuition award will be adjusted to exclude that part of Student’s curriculum involving religious instruction. Using the percentage provided by Assistant Principal, 7.29% will be deducted from the base tuition of $98,000.00, 16 for a total of $7,144.00. Thus, Parents will be entitled to direct funding to Private School in the amount of $127,831.00 17 for the annual tuition rate.

The undersigned finds no issues with the reasonableness of the costs, including tuition, associated with Private School. Student attended Private School during the year at issue (Ex. O; Ex. Q). Moreover, the undersigned finds that the weight of the evidence establishes that Parents cooperated with the DOE and CSE’s efforts to develop an IEP and recommend a program and placement for the 2021-2022 school year. Furthermore, Parents considered the school placement

16 This amount excludes the costs of the paraprofessional and Behavioral Consultant, both of whom were providing support services to Student and not religious instruction.

17 This total amount reflects the base tuition, minus the religious instruction, that being $90,856; plus the cost of the paraprofessional, that being $27,000; plus the cost of the Behavioral Consultant services, that being $9975. recommended by DOE and determined it would be inappropriate for Student (Ex. C at 1). Overall and after considering the record at hearing, the undersigned finds that the equities support Parents’ claim for tuition reimbursement and direct funding.

OTHER REQUESTED RELIEF

I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY: ORDERED, that the DOE shall reimburse Parents in the amount of $5,000.00 within 35 days of this Order, FURTHER ORDERED, that the DOE shall directly fund Private School in the amount of $127,831.00 within 35 days of this Order.

SO ORDERED.

Dated: August 14, 2023

Cynthia M. Lindblom

Cynthia M. Lindblom

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 A- REDACTION IDENTIFICATION PAGE

Redacted Information Term Used In FOFD

REDACTED Student

REDACTED Parent 1

REDACTED Parent 2

REDACTED Parents’ Attorney

REDACTED District or DOE

REDACTED Assistant Principal

REDACTED Teacher

REDACTED Executive Director

REDACTED Private School

REDACTED Speech Therapist

REDACTED Physical Therapist

REDACTED Occupational Therapist

REDACTED School Coordinator

APPENDIX B- DOCUMENTATION ENTERED INTO EVIDENCE

PARENTS EXHIBIT(S)

A. Demand for Due Process 11/29/2022 5 pages

B. Individualized Education Program (IEP) New York City Dept. of Education 5/4/21 20 pages

C. Letter from Parent to CSE 8/11/21 3 pages

D. Student’s Daily Schedule REDACTED 2021-2022 1 page

E. Annual Goals and Progress Reporting REDACTED Winter 2022 Progress Summary: 2021-2022 12 pages

F. Educational Report By: REDACTED Spring 2022 Progress Summary: 1/21/22 2 pages

G. Educational Report By: REDACTED Winter 2022 Progress Summary: 5/26/22 2 pages

H. Speech and Language Therapy By: REDACTED Spring 2022 Progress Summary: 1/6/22 2 pages

I. Speech and Language Therapy By: REDACTED Winter 2022 Progress Summary: 5/26/22 2 pages

J. Physical Therapy By: REDACTED Spring 2022 Progress Summary: 1/21/22 2 pages

K. Physical Therapy By: REDACTED Winter 2022 Progress Summary: 5/23/22 2 pages

L. Occupational Therapy By: REDACTED Spring 2022 Progress Summary: 1/22/22 2 pages

M. Occupational Therapy By: REDACTED 6/1/22 2 pages

N. Program Description REDACTED Attendance Record Undated 1 page

O. By REDACTED 7/20/22 1 page

P. Tuition Contract with Addendum REDACTED 8/30/21 2 pages

Q. Affidavit of Payment By: REDACTED 8/17/22 1 page

R. Affirmation of REDACTED 7/13/23 15 pages

S. Affirmation of REDACTED 7/13/23 4 pages

DOE EXHIBIT(S)

1. Prior Written Notice 8/24/21 4 pages DOE

2. Student Information – School Placement Request 6/21/21 2 pages DOE

3. Individualized Education Program (IEP) 5/4/21 38 pages DOE

4. Progress Summary – Speech and 1/21/21 Language Therapy Winter 2021 2 pages DOE

5. Progress Summary – Physical 1/21/21 Therapy Winter 2021 2 pages DOE

6. Progress Summary – Occupational 1/21/21 Therapy Winter 2021 2 pages DOE

7. Progress Summary – Educational 1/21/21 Report Winter 2021 2 pages DOE

IHO EXHIBIT(S)

None

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary.

[2] References to the exhibits from the Due Process Hearing are denoted “Ex.”

[3] This reflects Student’s age during the 2021-2022 school year.

[4] References to the transcript from the Due Process Hearing are denoted “Tr.”

[30] minutes per session (Id. at 12). Student worked on vocabulary, listening, comprehension, pragmatic language, and phonetic awareness; areas where Student either mastered their goal or showed impressive improvement. Id. Lastly, Student also received group counseling services twice a week at Private School where they focused on appropriate social interactions between peers (Tr. 47-48). In terms of parental support, Private School would constantly communicate with Parents whenever they encountered behavioral difficulties at home and needed to know the best practices to resolve them (Tr. 47). Parent 1 testified they were in touch with Private School on almost a daily basis and found them to be extremely helpful and supportive (Ex. S at 3-4; Tr. 64-65).

[5] See, 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].

[6] See, 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]

[7] See, 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].

[8] I note that District’s Exhibit 7, entitled “Winter 2021 Progress Summary – Educational Report,” dated January 21, 2021, is likely the “Teacher Report” referred to on the PWN since both documents are dated the same and Exhibit 7 appears to be an update on Student’s academic progress that is signed by Student’s Teacher.

[9] The CSE claimed a paraprofessional could not be considered because Private School did not provide supportive documentation and a classroom observation could not be conducted due to COVID 19 restrictions (Ex. B at 2). However, Assistant Principal testified that they neither withheld information from DOE nor refused to provide documentation and could have arranged a virtual observation for the District upon request (Ex. R at 13). I credit Assistant Principal’s testimony and incorporate this evidence into my analysis of DOE’s failure to provide a FAPE.

[10] I note some of the goals listed Student’s level as either Mastered with manipulatives, Mastered with teacher reading the word problem, Mastered with teacher prompting, or Mastered (Ex. E at 1-2).

[11] I note some of the goals listed Student’s level as either Mastered with teacher assistance, Mastered with teacher prompting, or Mastered, with one category listed as in progress (Ex. E at 2-3).

[12] I note some of the goals listed Student’s level as either Mastered with teacher assistance or Mastered (Ex. E at 4).

[13] I note some of the goals listed Student’s level as either in progress, progressing towards mastery, continues to require practice, limited progress, moderate progress, and moderate progress with cues (Ex. E at 5-8).

[14] District argued that 2 teachers and a paraprofessional seemed too restrictive and unnecessary; that there was no individual counseling provided to Student or official parent training and counseling provided; and that having a behavior consultant and a paraprofessional working with Student at the same time was duplicative and expensive (Tr. 68).