Impartial Hearing Decision

FINDINGS OF FACT & DECISION

State Case No.: 592812

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED].

(herein after referred to as “Parent”)

Hearing Dates: 3/6/23; 3/27/23

Actual Record Close: May 6, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: May 20, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], Esq., Parent

[REDACTED], Behavior Specialist

Appearing for the Respondent District

[REDACTED], ESQ.

[REDACTED], ESQ

[REDACTED], Director of Special Education

[REDACTED], School Psychologist

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 5, 2022 regarding the 2022/23 school year (D-Ex. 1)^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide a program that includes an general education integrated classroom with assistance of Student’s 1:1 private behavior therapist. (D-Ex.1). The District responded to the Parent’s complaint dated December 16, 2022 and asserted that it complied with all procedural requirements and recommended appropriate programs and placements. (D.Ex.3).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on December 6, 2022. A Pre-Hearing Conference was held on January 18, 2023, at which time hearing dates were scheduled for February 24, 2023 and March 14, 2023. Those hearing dates were adjourned on consent of the parties to March 6th and March 27, 2023. (T.pg.3-4).

At the March 6th Hearing, the District presented exhibits that were entered into evidence, the testimony of two witnesses, and rested. (T.pg.4-14; 206; 222).^[2] The Parent presented an exhibit that was entered into evidence and reserved its case until the March 27th Hearing^[3]. (T.pg.14-16; 206).

At the March 27th Hearing, Parent presented the testimony of one witness and rested. (T.pg.222; 296). The parties request to present written closing briefs was granted. (T.pg.297-299). Both parties submitted closing briefs. (P-Brief; D-Brief).

Four joint requests to extend the compliance date were granted. The record closed on May 6, 2023.

FINDINGS OF FACT

Student is classified under the IDEA as a student with Autism since pre-kindergarten. According to the most recent IEP developed by his previous school District, [REDACTED] on February 28, 2022 (the “[REDACTED] IEP”), he has also been diagnosed with Autism Spectrum Disorder. (D-Ex.4).

The Student transferred into the District before the start of the 2022-2023 school year on August 31, 2022 with an existing IEP that [REDACTED] developed on February 28, 2022 (“[REDACTED] IEP”). (D-Ex.28; 4). District held a transfer intake CSE meeting on September 7, 2022 to review the [REDACTED] IEP and determine how to provide the Student with comparable programming and services until the District could re-evaluate the Student’s needs and develop its own IEP. (D-Ex.6; T.pg.44-45; 53; 122).

CONCLUSIONS OF LAW AND FACT

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

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

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

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.” The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

The District’s September 7, 2023 IEP

Parent correctly asserts that, “It is well settled that a transfer student with a disability who had an IEP in effect within New York State and transfers from one school district to enroll in another within the same year, the new district shall provide such student with a free appropriate public education, including services comparable to those described in the previously held IEP.” (Parent Breif-1). 34 C.F.R. 300.323(3); 8 N.Y.C.R.R. 200.4(e)(8)(i). "'Comparable' services means services that are ‘similar’ or ‘equivalent’ to those that were described in the child’s IEP.” IEPs for Children Who Transfer Public Agencies in the Same State, 71 Fed. Reg. 46681 (Aug. 14, 2006).

The Student transferred into the District on August 31, 2022 with an existing IEP for the for the 2022-2023 school year, the [REDACTED] IEP. Accordingly, the District’s obligation was to provide the Student with programming and services comparable to those described in the [REDACTED] IEP.

There was no recommendation for a personal aide, behavior plan, behavioral therapy, or a behavioral therapist in the [REDACTED] IEP. (D-Ex.4; T.pg. 49; 113-15). ^[4] Although the [REDACTED] IEP stated in “Study Skills” that Student “can be very dependent on his ABA therapist and benefits from constant support to participate in the classroom routine… [Student] benefits from ABA therapy in the classroom and constant adult support.” (D-Ex.4-10), the [REDACTED] IEP failed to recommend any 1:1 behavior therapist, let alone Parent’s preferred Private Therapist. (D-Ex.4). No behavior intervention plan was recommended (D-Ex.4-12) ^[5] and no behavior issues that would rise to the level of a 1:1 behavioral aide were identified in the [REDACTED] IEP or subsequent re-evaluations. (D-Ex.4; 22; 23; 24).

District Director testified the [REDACTED] IEP indicated Student was an alternative assessment student and thus ungraded with a modified curriculum based on criteria including psychological testing, an IQ below 70, and low adaptive scores. Student was taught under the New York State alternative assessment (“NYSAA”) curriculum, which is a curriculum that targets functional communication and functional reading and math skills. It is a separate curriculum that targets functional communication, life skills, adaptive skills, and becoming more independent in the community. (T.pg.38-39; 48-49).

District’s School Psychologist testified she spoke with [REDACTED]’s School Psychologist, who stated Student was in a 1:6:1 [6:1:1] special class and had his own personal behavioral aide with him all day. District’s School Psychologist was surprised because the aide was not in the [REDACTED] IEP, which, given the high level of service, she expected would be. The [REDACTED] School psychologist said she did not know who approved the service, but that the aide worked with Student teaching Student 1:1 throughout the day. District’s School Psychologist testified to her confusion about the situation and lack of reference to an aide in the [REDACTED] IEP. (T.pg.139-41;145; 149; D-Ex.4).

… it was a surprising conversation with the school psychologist from [REDACTED], because it was like uncovering this whole entire level of service that wasn't listed on the IEP, which in my experience is very unique. I've never … encountered that before. Typically, when a student is receiving individualized support, that individualized support is listed in the individual education plan and it's clear how that individualized support is going to help the student access his educational environment and move towards his IEP goals.

(T.pg.149).

District Psychologist testified in a school setting, there is no-one called a “behavior therapist”. “We have a behavior specialist who is typically a person who holds a BCBA degree which is based in ABA principles, and that behavior specialist in a school setting consults with teachers and aides and helps develop behavior intervention plans. They will also conduct functional behavioral assessments. And then an aide is someone that would provide assistance to a student in a classroom … so the student is unsafe to themselves or others and, therefore, requires a one-to-one aide. Or a medical reason. So, for example, a student who might not be able to remove their books from their backpack and can’t – because they can’t move their arms or something like that.” (T.pg.192-93).

District Psychologist testified at the September 7, 2022 IEP meeting, she asked Student’s Private Therapist about Student’s academic levels, and the Therapist responded she could not comment on that because it is not her role. The Therapist said she gives Student a lot of prompts (verbal direction to keep student on task). (T.pg.157-58; 189). School Psychologist testified based on the responses, it did not appear her service was specialized and a classroom aide could do the same. (T.pg.159). Private Therapist did not provide the CSE with any written reports of her work with Student. (T.pg.195). Private Therapist testified she tracked and recorded Student’s progress, stored on a program, but not shared for privacy reasons. (T.pg.235-36; 275-77).

Following the CSE’s review of the [REDACTED] IEP, the District CSE recommended the same placement and services in the [REDACTED] IEP pending the outcome its own reevaluation, i.e., placement in a 6:1:1 NYSAA special class with the same type and level of related services, i.e., speech-language therapy and occupational therapy. (D-Ex.5, 14-15).

District Director testified a 12:1:1 special class would not be appropriate, even with additional supports, because the NYSAA curriculum is a functional curriculum. The [REDACTED] IEP indicated Student had limited verbal communication and written language and IQ in the 49 range. The CSE did not believe Student would be able to access the regular curriculum, which required more advanced skills like reading short stories, and which Student was not able to do. Student was functioning at a pre-kindergarten level. (T.pg.56-58).

District Director testified the District did not have a NYSAA 6:1:1 program in District and would normally refer students to outside agencies and BOCES programs. (D-Ex.6; T.pg.52; 54-55; 58-59; see also 134-35; 154). School Psychologist testified there were no 6:1:1 classes in the District and immediately started looking out of District to find a program. (T.pg.135-36).

Until an appropriate program was identified, District offered for Student to come into the District’s buildings for “home instruction,” related services, and to be integrated with other non-disabled (the “Interim Services”). (D-Ex.8; T.pg.59). Student did not receive any of the Interim Services because Parent’s request to have the Private Therapist accompany Student in the school was denied by District. District Director testified they have their own behavior specialists who were available to work with Student. (T.pg.65-67; 70-71).

District referred the Student to 15 to 18 possible placements, including local public school districts, BOCES Centers, and State-approved private agencies. (T.pg.72-74; D-Ex.29 through 38). District Director testified that out of the potential placements that would accept Student, there could be months or years on a waitlist, but two were available by September 27, 2023, the [REDACTED] Academy and the [REDACTED] BOCES-operated 6:1:1 NYSAA special class housed in the [REDACTED] Central School District’s elementary school (the “[REDACTED]”). (D-Ex.10; 29; T.pg.80-81; 83). District rejected Summit as being too restrictive without mainstreaming opportunities, which was an important issue for Parent. (T.pg.83-84).

The District recommended placement at [REDACTED] because it was conducted in a public school with opportunities for interaction with non-disabled peers. (T.pg.84-85; 88; 118; see also 161-62). However, Parent required as a condition that Student’s Private Therapist attend Student at the school for 30 hours/week. (T.pg.88-89; D-Ex.35). Since the CSE did not recommend a behavioral aide/ private 1:1 therapist in the IEP, the [REDACTED] Placement would not allow Parent’s outside Private Therapist. (T.pg.89-90). ^[6]

In adopting the program recommended in the [REDACTED] IEP, the District presented testimony and evidence that they reviewed the available documents and evaluations from [REDACTED] and School Psychologist spoke to the [REDACTED] School Psychologist, all of which supported the conclusion that Student’s autism disability presented serious obstacles to Student’s ability to access a mainstream curriculum and required significant supports. While District did not have a 6:1:1 in the District, it offered Interim Services until an available program could be identified. As set forth above, Parent rejected the Interim Services because District would not allow Student’s Private Therapist to attend.

District offered a placement to implement the IEP, which Parent rejected because the Private Therapist would not be allowed to attend.

The [REDACTED] IEP did not recommend a 1:1 ABA therapist service or integrated class in a general education. Nor was there evidence in the record that Student could make academic progress in a general education class with the support of a 1:1 therapist. Therefore, the District’s adoption of the [REDACTED] IEP’s recommended program, proposed Interim Services, and proposed placements, satisfied the District’s burden to provide FAPE.

The District’s September 27, 2023 IEP

Following the September 7th IEP, District conducted re-evaluations of Student for speech and occupational therapy. (T.pg.71-72;D-Ex.23; 24). School Psychologist testified she conducted the psychological re-evaluation dated 9/20/22. Student was brought to the conference room by Student’s grandmother and Private Therapist, who remained outside without discussion or concern while the evaluation was conducted. (T.pg.164-65). The re-evaluation stated a student interview was not conducted due to low expressive language. (D-Ex.22-2). Student was not able to verbally respond to questions about his name and age. Student’s attention was fleeting and often required prompting of calling his name to look at testing materials. At times he would walk around the room, but was easily redirected to sit back down. (D-Ex.22). School Psychologist testified Student did not engage in any aggressive behaviors, but his behaviors were consistent with the autism diagnosis. (T.pg.166).

Evaluator stated after repeated attempts at standardized cognitive testing, testing was discontinued. Student did not respond to many of the questions asked, and at times was not able to focus his attention to the testing materials. His fleeting attention was present during both verbal and non-verbal portions of the subtests administered. (D-Ex.22, 2-3). School Psychologist testified Student would mostly use one word. (T.pg.167). The prior [REDACTED] psychological assessment found Student’s IQ at a standard score of 49 in the extremely low range and activities of daily living in the low range. (T.pg.170; D-Ex.26).

The evaluation stated Student was able to demonstrate some rote academic skills, such as identifying numbers and letters. He had more difficulty if there was more context around a question. School Psychologist gave an age equivalent of 3 years seven months based on the test she could administer. (T.pg.176; D-Ex.22). The evaluation recommended Student continue in a class with a small teacher-to-student ratio to allow for a high level of prompting and repetition of content. “He will require significant modifications to the curriculum that provide access points according to his current functioning level.” Student’s program should include: an emphasis on the use of functional language; the opportunity for quiet, structured, individual or small group academic instruction; regular communication among all team members; integration of therapeutic approaches (e.g., sensory input, language prompting) with functional academics; opportunities for structured social time with peers and direct instruction around social skills; regular communication between home and school. (D-Ex.22, 21-22; T.pg. 182-83).

Following the re-evaluations, a CSE meeting was held on September 27, 2022. (D-Ex.9; (T.pg.82-83). At the meeting, the District continued the prior [REDACTED] recommendation that the Student participate in the NYSAA curriculum in a 6:1:1 special class with related services. (D-Ex.9, 17-18; T.pg. 185). School Psychologist testified a mainstream class or a non-NYSAA setting would not be appropriate for Student. (T.pg.186; D-Ex.22).

Student’s IQ is a standard score of 49 considered to be in the extremely low range. (D-Ex.26; T.pg.170). Although Student is [REDACTED] years old and the age-equivalent of third grade, the September 2022 re-evaluation showed Student’s functional academic level was equivalent to a child aged three years, seven months. (D-Ex.22; T.pg.176).

Present Levels of Performance (“PLEPs”) described in the Student’s [REDACTED] IEP demonstrate Student’s significant academic needs. In second grade, Student was learning letter sounds and sight words and still working on that in third grade; (D-Ex.4-10; T.240-241); Student could not write his name and was working on writing lowercase letters; (D-Ex.22-4; T.pg.240); Student was working on addition and with manipulatives, but only numbers zero through five; (T.pg.240); Student can identify numbers, but does not demonstrate an understanding of one-to-one correspondence; (T.pg-175-76); Student did not demonstrate an understanding of size or size comparisons, e.g., larger versus smaller. (T.pg.175).

Student also has significant speech-language deficits in the areas of receptive, expressive, and pragmatic language. (D-Ex.4-10; D-Ex.24). BPS IEP states, “[the Student] is a mostly non-verbal student that will repeat words and phrases to communicate with others.” Student answers questions with one-word responses, does not put multiple words together to form sentences, and can follow basic one-step directions. (D-4-10). The [REDACTED] IEP recommended “Use of personal, high-tech speech generating device to allow [Student] to receptively demonstrate his knowledge of content / skills as well as express himself.” (D-Ex.4-15).

District’s Speech-Pathologist noted in her reevaluation report that the Student could repeat and request using one-word phrases and follow simple one-step directions, but he did not demonstrate that he could use 2-3 words together to request something or to respond to complex questions (e.g., Where do you live?). The Student similarly did not demonstrate that he could follow directions that included more than one step. (D-Ex.24; D-9-12). Student’s grandmother reported that instead of asking for items, Student pulls her toward and points to the objects that he wants. (T.pg.183).

Student has considerable needs in the area of motor skills. Student continues to exhibit fine motor delays as well as delays in the areas of visual motor, visual perception, attention, and sensory processing skills. (D-Ex.23; D-4, 11-12).

The District is required to develop IEPs that are “reasonably calculated to enable a child to make to progress appropriate in light of the child’s circumstances.” Endrew F., 580 U.S. at 403. As demonstrated above, a recommendation to place Student in a third grade general education classroom, where students are reading, writing, and doing math at grade level, would not have been reasonable or calculated for the Student to make progress. District’s reevaluations showed that the Student continued to have significant disability-related needs as well as highly intensive management needs that required a high degree of individualized attention.

Parent’s Private Therapist testified that Student still requires step-by-step instruction and multiple prompts in the 6:1:1 class, where Student receives more, not less support. (T.pg.242-43). Private Therapist confirmed she never observed Student in a mainstream classroom setting (T.pg.271), but that the positive mimicking in a mainstream class would come from Student’s attentiveness and being able to sit. Private Therapist conceded any mimicking would not extend to learning the curriculum. (T.pg.273-74). Private Therapist could not testify if Student was placed in a third grade mainstream class, whether he could learn the curriculum. (T.pg.265-269; 287). She did not have an opinion about the program Student should be in, only that she would support him with 1:1 support. (T.pg.285-86).

Private Therapist’s testimony demonstrates that the Parent’s request for a general education setting is not appropriate. With respect to the Student’s current academic abilities, the Student is working on addition with manipulatives using numbers 0 through 5 only (T.pg.240); he is working on writing his lower case letters, memorizing sight words, and single letter sounds (T.pg.240-41); in science, the Student is “working on the weather.” (T.pg.241). Parent’s evidence falls short of demonstrating that an age-equivalent general education setting would be reasonably calculated to enable the Student to make appropriate progress.

After the IEP meeting, District continued to seek placements for Student. (T.pg.91-92; D-Ex.40; 41). District Director emailed Parent on December 5, 2022 that an opening at another BOCES-operated 6:1:1 special class had become available. (D-Ex.40; T.pg.91-92). District Director testified Parent rejected the placement because the Private Therapist would not be allowed to accompany Student at the school. (T.pg.92-93).

It is within a school district’s discretion and authority to determine how best to provide a student's educational programming, including which personnel shall provide related services. The SRO has not required school districts to utilize a parent’s preferred provider, even when such individual was provided through Medicaid and/or the parent believed that using the district’s provider would result in less adequate services. Application of the Bd. Of Educ. of the E. Ramapo Cent. Sch. Dist., Appeal No. 22-037 citing Ventura de Paulino v. New York City Dept. of Educ., 959 F.3d 519, 534 (2d Cir. 2020); see Appeal No, 22-037; Application of the Springville-Griffith Inst. Cent. Sch. Dist., Appeal No 07-007; see also Application of the Williamsville Cent. Sch. Dist., Appeal No. 21-204.

The District has made admirable efforts to obtain an appropriate placement for Student. Parent has unnecessarily rejected the District’s Interim Services, three school placements, and IESP services, because of an insistence on the use of Parent’s Private Therapist. ^[7] In the absence of evidence that Student requires a 1:1 therapist, let alone Parent’s preferred provider, the District has satisfied its burden and demonstrated FAPE for the 2022/23 school year.

District’s Proposed Programs are the Least Restrictive Environments

Parent argues the District should have recommended a general education integrated class with the 1:1 support of Private Therapist as the least restrictive environment. (Parent Brief). In P. v. Newington Board of Education, the Second Circuit adopted a two-prong approach when determining whether a student’s proposed placement meets the least restrictive environment requirement. See, P. v. Newington Bd. of Educ., 546 F.3d 111. (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See, Id.

As set forth above, enrollment in a general education integrated class, even with 1:1 support, would not be reasonably calculated to enable Student to make progress appropriate in light of the child’s circumstances. Student has severe cognitive and verbal disabilities. Private Therapist discussed how he could be distracted in a class of 6 students, let alone over 20 students. Student would be significantly behind the other students in all academic areas, so much so, that there is no evidence 1:1 support throughout the day could enable Student to make progress. Parent has not provided any evidence that Student could make progress in a general education curriculum, as opposed to the NYSAA curriculum recommended by [REDACTED] and now District, following two psychological evaluations.

As set forth above, District’s proposed placements and programs offered mainstream opportunities in the Interim Services and proposed schools.

Thus, District’s recommended programs and placements were the least restrictive environment in accordance with FAPE.

Parent’s ADA Claims are Denied

Parent asserts that the Federal rehabilitation Act and Americans with Disabilities Act (ADA) requires that reasonable accommodations be provided to assure that a disabled student can participate in, or benefit from, defendants’ service. See Rehabilitation Act of 1973, § 2 et seq., 29 U.S.C.A. § 701 et seq.; Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq. Where a student’s educational experience is undermined, equal access to the school’s opportunities is effectively denied. See Id.

The RA similarly requires a disabled student receive a FAPE that is properly tailored to the student’s needs. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-841 [2d Cir. 2014]. Contrary to Parent’s authority in Robert F. v. N. Syracuse Cent. Sch. Dist., the District in this case has provided Student a FAPE, as set forth above. Parent has not provided evidence that Student requires a 1:1 therapist for the entire school day, let alone Parent’s preferred Private Therapist. Parent has failed to demonstrate District acted in bad faith. Rather, the record details the extensive efforts District made to provide Student with educational services with an appropriate program and multiple placements.

Thus, Parent’s ADA claims are denied.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District provided the Student FAPE during the 2022/23 school year.

The Parent’s remaining requests are denied based on the lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, the District provided the Student FAPE during the 2022/23 school year, and the Parent’s DPC dated December 5, 2022 is dismissed, with prejudice.

SO ORDERED

DATED: May 20, 2023

David R. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

Ex. Description Pgs.

Parent's Due Process Complaint with Attachments, dated December 5, 2022

101

District's Initial Appearance Letter, dated December 8, 2022

3

District's Response to Due Process Complaint, dated December 16, 2022

4

IEP for 2021-2022 School Year ([REDACTED] Public Schools), March 1, 2022 Projected Start Date

17

IEP for 2022-2023 School Year, September 8, 2022 Projected Start Date

18

CSE Meeting Minutes, September 7, 2022

4

Prior Written Notice, dated September 7, 2022

2

Prior Written Notice, dated September 14, 2022

2

IEP for 2022-2023 School Year, September 28, 2022 Projected Start Date

20

CSE Meeting Minutes, September 27, 2022

2

Prior Written Notice, dated September 30, 2022

2

IESP for 2022-2023 School Year, November 11, 2022 Projected Start Date

19

CSE Meeting Minutes, dated November 10, 2022

2

Prior Written Notice, dated November 10, 2022`

2

IESP for 2022-2023 School Year, January 28, 2023 Projected Start Date

19

Prior Written Notice, dated January 23, 2023

2

IESP for 2022-2023 School Year, February 10, 2023 Projected Start Date

19

CSE Meeting Minutes, dated February 9, 2023

2

Prior Written Notice, dated February 9, 2023

2

Email from [REDACTED] forwarding Letter of Intent to Homeschool, dated October 31, 2022

2

Individualized Home Instruction Plan

1

[REDACTED] Psychological Evaluation Report for September 20, 2022 Evaluation

7

[REDACTED]Occupational Therapy Evaluation Report for September 21, 2022 Evaluation

4

[REDACTED]Speech-Language Evaluation Report for September 22, 2022 Evaluation

6

Social History Completed by [REDACTED], dated September 20, 2022

2

[REDACTED] Public Schools Psychological Evaluation Report,

5

[REDACTED]Audiological Evaluation Report, dated October 6, 2022

2

Copy of Student's Registration Information in Powerschool

1

Spreadsheet Showing Placements Explored for Student for 2022-2023 School Year

1

Email from [REDACTED]to [REDACTED], dated August 30, 2022

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Letter from [REDACTED] to [REDACTED]CSE, dated September 12, 2022

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Letter from [REDACTED]to [REDACTED]CSE, dated January 12, 2023

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Letter from [REDACTED] to [REDACTED], dated September 19, 2022

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Letter from [REDACTED]to [REDACTED], dated September 23, 2022

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Email from [REDACTED]to [REDACTED], dated October 3, 2022

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Email from [REDACTED] ([REDACTED] Public Schools) to [REDACTED], dated October 5, 2022

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Email from [REDACTED]to [REDACTED], dated October 5, 2022

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Email from [REDACTED]to [REDACTED], dated October 11, 2022

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Email from [REDACTED] to [REDACTED], dated October 12, 2022

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Email from [REDACTED]to [REDACTED], dated December 5, 2022

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Email from [REDACTED] to [REDACTED], dated January 23, 2023

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Occupational Therapy Session Notes, December 8, 2022 - February 15, 2023

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Occupational Therapy Progress Notes, 2022-2023 School Year

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PARENT EVIDENCE

A Prescription for ABA Therapy, dated 3/2/2023, 1 page

Footnotes

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

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

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

[4] Parent refers to the private ABA Therapist, who testified an ABA therapist is similar to occupational therapy, but tailored to children with special needs, with the goal to increase helpful behavior and decrease harmful behavior. (T.pg.225). She had a bachelor’s degree for communication disorders, received training through the agency she works for, and received online training. (T.pg.227). She testified she is certified, but not sure whether in the State of New York or nationally. (T.pg.249-252). In lieu of identifying her as an “ABA Therapist”, she is referred throughout this decision as “Private Therapist” because the record is not clear on her certification.

[5] Although the [REDACTED] IEP stated Student needed strategies and supports to address behaviors, there is no indication the strategies could not be developed and applied in the 6:1:1 class and program with related services. (D-Ex.4-12). School Psychologist testified, “those strategies can be … carried out by classroom aides, by teachers…. in order to have … an individual behavioral intervention plan, if a student is showing a pattern of concerning behavior, you would conduct a functional behavioral assessment which would then indicate does the student need an individualized plan based on the function of their behavior. (T.pg.200-01).

[6] While there was questions and testimony about transportation and distance to the proposed placements, Parent’s deciding factor in rejecting any placement or program proposed by the District was the special education class and denial of the private therapist. (T.pg.198-99).

[7] Parent exercised her right to homeschool the Student on Monday, October 31, 2022, and requested the District develop an Individual Education Services Plan (“IESP”) providing for related services. (D-Ex.20; T.98). District developed an IESP on November 10, 2022 providing for speech and occupational therapy services. (D-Ex.12; 14; T.pg. 99). Similar to the Interim Services, Parent refused to send the Student to the District’s schools for the IESP services on the basis that the District would not permit the Student’s Private Therapist to attend school with him, so District contracted with outside agencies when available. (D-Ex.13; 101-105). As a result, Student has not received speech services from the District during the 2022-2023 school year. (T.pg.101-105).