New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593196 - NYC: 243609

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 243609

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

School: [Redacted] (referred to as “Private School”)

Date of Complaint: December 9, 2023

Hearing Dates: June 6, 2023

Actual Record Close Date: June 8, 2023

Decision Date: June 22, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 6, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 9, 2023, regarding the 2020/21school year (P-Ex. A) 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 an appropriate program and placement for the 2020/21 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 23, 2023. A prehearing conference was held on February ^[1], 2023, to discuss the issues in the case. At that time a District Representative informed us that the matter was under investigation (See, Transcripts).^[2] Status conferences were held on March 16, 2023 and April 21, 2023, where two different District Representatives informed us that the matter was still being investigated. On May 19, 2023, no one appeared for the District and the Parent had not received any update and requested that the hearing be scheduled. A hearing was held on June 6, 2023 and concluded in one day. On that date, a new District Representative appeared and was not aware the matter was scheduled for hearing. The District requested an adjournment, which was denied and then made a motion to dismiss based on the Statute of Limitations and asserted that since the DPC was filed in December 2022, past the beginning of the school year (T. 36). The District’s motion was denied. The Governor’s Executive Order tolled the SOL from March 20, 2020, through November 3, 2020 (7.5 months). The Parent did not unilaterally enroll the Student at the Private School until July 4, 2020, and did not receive a copy of the 2020 IEP until August 12, 2020. The undisputed facts, along with the tolling of the SOL, I have denied the District’s motion.

The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavit. The District did not cross-examine the affidavit witnesses. The record closed on June 8, 2023. There were four extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student was an [Redacted] year old student during the 2020/21 school year (P-Ex. GG-1). The Student was classified as a student with Autism (P-Ex. B; GG-5). He was diagnosed with Autism as a toddler and received special education services since preschool (P-Ex. GG-5; GG-6). The Student is verbal and is able to express his wants and needs; however, he has difficulty maintaining eye contact, engaging in reciprocal conversation, expressing his feelings, problem solving, and following directions (P-Ex. GG-5). He prefers to be alone, has difficulty interacting appropriately with peers or with his siblings, he has difficulty with perspective taking and empathy, has a tendency to perseverate on topics of interest to him and is very self directed (P-Ex. GG-5). The Student has a very low frustration tolerance and will often tantrum or run away when he is asked to do something he does not want to do; sometimes he will become frustrated and throw things without regard for other people; he also has a tendency to compulsively touch everything in his immediate surroundings, including his peers, and when frustrated, he will grab at things and people (P-Ex. GG-5). The Student is very easily distracted and engages in self stimulatory behaviors like rubbing his hands and feet together and making sounds and banging his head; he wears a weighted cap to help reduce his tendency to bang his head and for those reasons, he needs a lot of adult support in a safe environment (P-Ex. GG-5). The Student has strong academic skills but it is a challenge to get him to learn when he is not interested in the topic (P-Ex. GG-5). He is able to read quite a few words, but due to his distractibility, he has a hard time understanding what he is reading (P-Ex. GG-5). The Parent testified by affidavit and described that the Student did not respond well to changes in routine and the pandemic was very difficult for him (P-Ex. GG-5).

On May 6, 2020, the District’s CSE met to develop the Student’s IEP for the 2020/21 school year (P-Ex. B; GG-2). The Parent participated in the meeting, as did the Student’s classroom teacher and BCBA from the Private School, where he had attended for several years (P-Ex. GG-2; GG-5). The IEP meeting was held by telephone and the Student was learning remotely at the time (P-Ex. GG-2). At the IEP meeting, the Private School participants described the Student’s needs, specifically, his need for one to one academic and behavior supports (P-Ex. GG-2). The School Administrator/BCBA shared with the CSE that the Student was progressing with his individual learning goals with the use of a 1:1 ABA discrete trial teaching, and that due to the severity of his sensory processing challenges and social deficits in conjunction with his impulsive and self directed behaviors, task avoidant behaviors, disruptive and sometimes dangerous behaviors, he continued to need a one to one paraprofessional, a behavior intervention plan and a sensory diet (P-Ex. FF-5-6).

The District recommended a 6:1:1 classroom with speech, physical therapy, occupational therapy, Parent counseling and training, and counseling, for a 12-month school year (P-Ex. B-10; GG-2). The Parent agreed that the Student needed a small classroom, and frequent individual related services, but did not agree with the recommended program without the support of a one to one paraprofessional, a behavior intervention plan, or a sensory diet (P-Ex. FF-6; GG-2).

The Parent described that the Student needed constant prompting to stay on task, and that he struggled immensely to stay regulated and engage with others (P-Ex. GG-2). The Parent testified that the District told them that they could tour the placement when offered to see whether the school offered ABA, and if not, what type of programming the school would offer (P-Ex. FF-6; GG-2-3). However, at the time, the Parent had already toured multiple public schools, and did not find any of them to be appropriate and they were unable to find a public school offering ABA programming (P-Ex. GG-3). It was also clear that the Student needed to get back into school in person as soon as possible, as he was too easily distracted in a full day of remote learning (P-Ex. GG-3). The Parent was told that the District could not tell them when schools would re-open (P-Ex. FF-6; GG-3).

The Parent received a placement offer via email on June 3, 2020, however the Parent had not received a copy of the May 2020 IEP (P-Ex. GG-3). The Parent called the school a few times and left messages, however, she was unable to communicate with anyone, and no one returned her several messages (P-Ex. GG-3). The Parent did not receive any information about in-person attendance, ask questions about the placement, or if there was a seat available for the Student (P-Ex. GG-3-4).

Just before the July start of the 2020/21 school year, the Parent learned that the District would not be re-opening their schools for in person learning (P-Ex. GG-4). The Private School informed the Parent that it would provide in-person learning (P-Ex. GG-4). Because the District had not offered an appropriate program and placement for the Student for the 2020/21 school year, or in-person learning, and could not speak with the recommended placement, the Parent decided to re-enroll him at the Private School for the 2020/21 school year (P-Ex. GG-4). The Parent testified that they are not certain whether they sent the District a ten day notice, but that the District was aware that the Student was attending the Private School at the time of the May 2020 meeting, and were aware that they had an open case seeking tuition reimbursement for the 2019/20 school year (P-Ex. GG-2; GG-4). In early August 2020, the Parent contacted the CSE chair to ask for a copy of the Student’s IEP, and after a few emails they received a copy of the IEP on August 12, 2020 (P-Ex. GG-4).

The Parent signed the tuition contract with the Private School on July 4, 2020, a couple days after the start of the 2020/21 school year and attended for the 12-month school year (P-Ex. GG-6). The tuition included a paraprofessional and intensive related services (P-Ex. GG-6). The Parent testified that they were unable to pay the tuition in full, which amounts to nearly half of their gross family income (P-Ex. GG-6; T. 52).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is 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.

Here, the District did not present a case, and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21 school year. There was no testimony to describe how the recommended program would benefit the Student or address his needs; there was no testimony regarding how the IEP would address his behaviors; why no one from the recommended school location reached out to the Parent; or why the Parent received a copy of the IEP a month after the beginning of the school year. Based on all of reasons above, I find that the District did not provide the Student with FAPE for the 2020/21 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 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 the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

The Supreme Court of the United States has held that the appropriateness of a unilateral placement turns on whether it is reasonably calculated to enable the child to receive educational benefits, which is not limited to a single dispositive factor. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). The Second Circuit cited several factors that may be considered evidence that a child is receiving an educational benefit, including grades, test scores, and regular advancement, yet clarified that courts assessing the appropriateness of a parent’s unilateral placement must “consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.” Frank G. 459 F.3d at 364; accord Knable ex rel. Knable v. th Bexley City Sch. Dist., 238 F.3d 755 (6 Cir.2001) (holding that a unilateral private placement with small classes, where the student made educational progress and grades and behavior improved, was appropriate). Under the IDEA, to meet the requirements for reimbursement, parents do not need to show that a private placement provides every single service required to “maximize their child’s potential.” Frank G. 459 F.3d at 364; See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (“The test for parents’ private placement is not perfection.”). Parents must 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; Rowley, 458 U.S. at 188–89. “Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that results from the student’s disability.” 8 NYCRR § 200.1(vv). Where “the hearing record shows that [the Private School] did not provide OT or PT...” and the school “provided programs that assisted the student in developing both fine and gross motor skills,” “the lack of these services” is “not sufficient to support a finding that [the Private School] is not appropriate given that these services did not appear to be necessary to the student receiving educational benefits and [Private School] did address the needs to some extent. The student’s primary needs related to his attention and academics, and [Private School]...adequately, if not perfectly, addressed them.” Application of the Board of Education of the Arlington Central School District, Appeal No. 16- 023 at 24-25.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student’s special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent’s failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“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). Finding that the District did not provide FAPE to the student during the 2020/21 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction. The Private School provided the Student with an appropriate educational program and placement for the 2020/21 school year. The Student received instruction developed specifically for him, which was delivered in person on a largely 1:1 basis. His behavioral and sensory supports were individualized for his needs and related services were provided in 1:1 sessions and on a group basis.

The School Administrator/BCBA testified by affidavit regarding the Student and the Private School (P-Ex. FF). The Private School is a small, ungraded special education school that serves students with a variety of special education needs, including but not limited to students with autism spectrum disorder (“ASD”), genetic disorders, global developmental delays, and/or physical delays, who require a high level of support and services (P-Ex. FF-2). Their mission to provide a safe learning environment to children with social, behavioral, and academic challenges (P-Ex. FF-2). Her duties include training the staff members, collaborating with the teachers, paraprofessionals, and related service providers, help conduct functional behavior assessments (“FBAs”), and create behavior intervention plans (P-Ex. FF-2). She also helps assess students to create individualized goals and individualized program books that are used during one-to-one learning time (P-Ex. FF-2). She also participates in IEP meetings when invited, and works with teachers on their lesson plans, goals for the students, and the implementation of the students’ 1:1 programming (P-Ex. FF-2).

The Private School offers students highly specialized curriculum with one-to-one instruction tailored to each student’s needs (P-Ex. FF-2). The Private School uses ABA teaching with oversight from BCBAs/LBAs (P-Ex. FF-2). They also use Edmark reading, Wilson/Orton Gillingham, Natural Environment Teaching, and PROMPT therapy (P-Ex. FF-2). Students are alternatively assessed and require an individualized curriculum and individual learning goals (P-Ex. FF-2). As such, their progress is not measured based on advancement from grade level to grade level, but rather they are assessed based on their progress with their individual learning goals that are created for them (P-Ex. FF-2).

An individualized curriculum is developed and maintained for each student, with specific goals reflecting their needs (P-Ex. FF-3). The curriculum targets academics, speech and language, social skills, daily living skills, sensory and motor domains, and challenging behaviors (P-Ex. FF-3). The educational programs are implemented on a 1:1 basis by instructors trained in ABA and instructors collect data on each student’s progress with their individual goals on a daily basis (P-Ex. FF-3). The data is reviewed weekly by the BCBAs and goals are updated and modified accordingly (P-Ex. FF-3). The 1:1 instruction includes DTT sessions, also known as “Discrete Trial Teaching” that are focused on implementing the individualized curriculum using principals of ABA (P-Ex. FF-3). “Natural Environment Teaching”, also referred to as NET, is another component of the 1:1 instruction, that emphasizes increasing language, play skills, and social interactions (P-Ex. FF-3). Skill acquisition goals are incorporated into NET sessions to facilitate the generalization of skills addressed during DTT sessions (P-Ex. FF-3). Social Groups are another part of each student’s day, with a particular concentration on social-emotional development (P-Ex. FF-3). The “Social Thinking” curriculum is incorporated into group lessons, and goals are individualized for each student that are geared to teaching students to follow directions given in a group setting (P-Ex. FF-3). During the 2020/21 school year, the Private School had 46 students from 5 to 19 years, and many of them had a diagnosis of ASD along with various other disabilities (P-Ex. FF-3; FF4). It had eight classrooms, and classroom assignments were made based on students’ age, skills, classifications, and special education needs, so that appropriate peer matches were made (P-Ex. FF-4). The Private School offers Speech and Language Pathology, including PROMPT for students with oral-motor disorders; Occupational Therapy (“OT”); Physical Therapy (“PT”); Counseling; Music Therapy; Aquatic Therapy; and Animal Therapy; all taught by licensed professionals in their areas of practice (P-Ex. FF-3). The Private School has three BCBAs on staff who supervise teachers and help with the development of the students’ individualized programs, progress monitoring and data collection, behavior intervention plans, and schedules (P-Ex. FF-3). Each student in the school has a binder with different tabbed dividers for each of the students’ individual ABA programs and each program includes an overview that contains a summary of what skills the student is working on and a rationale for the skill (P-Ex. FF-3). The program book contains the mastery criteria for each skill, as well and what type of data should be taken, followed by data sheets for each program (P-Ex. FF-4).

The Private School has a sensory gym that contains swings, crash mats, and a ball pit, among other equipment; it has an OT room with tables to work on fine motor skills like handwriting, and different tabletop activities; a speech room and access to a pool in the building where students receive aquatic therapy (P-Ex. FF-4). Teachers meet with the BCBAs on a weekly basis to discuss a students’ progress, bring up any issues and/or concerns, and discuss if programs need to be updated (P-Ex. FF-4). Interdisciplinary meetings with the entire team including all related service providers happen monthly unless the student’s needs call for additional meetings (P-Ex. FF-4). At the monthly interdisciplinary meetings, each therapist discusses the progress the student has made, what goals will be addressed next, and what methods and strategies have been helpful with that specific child (P-Ex. FF-4). The Private School invites parents to visit for parent/teacher conferences 2 to 3 times a year to discuss the child with their whole team, including the BCBA, the teacher, and all related services therapists (P-Ex. FF-4). During the meeting, the students’ progress is discussed, as well as the current goals and what is being done to achieve the goals (P-Ex. FF-4-5). Parent concerns are also discussed as well as strategies to prevent maladaptive behaviors at home (P-Ex. FF-5). In addition, teachers offer daily communication with parents and call parents at least once a month and related services providers call home monthly (P-Ex. FF-5). Parents are also offered support groups approximately every six weeks (P-Ex. FF-5).

During the 2020/21 school year the Private School offered a full time in-person program including during the summer of 2020 (P-Ex. FF-5). It closed temporarily by New York State mandate for a few weeks in October 2020 and during that time, they implemented a remote learning program through Zoom where students continued to receive a full schedule including individual and group instruction lessons as well as all related services and paraprofessional support (P-Ex. FF-5). The Student had challenges attending during that time period, but with support from his parents at home, he participated in each day of instruction until they resumed in person learning immediately following the temporary closing in October 2020 (P-Ex. FF-5).

The Student attended the Private School during the 2020/21 school year for the 12-month program (P-Ex. FF-5). The BCBA testified that she conducted several observations of the Student early in the year to help develop the Student’s educational program and goals in collaboration with his teacher and related service providers (P-Ex. J; FF-6). The Student presented with global delays, affecting his ability to learn and execute tasks; he had difficulty controlling impulses, social behaviors and self-stimulatory behaviors; he demonstrated little awareness of his environment and compulsively touched and/or grabbed at items in his surroundings, and his peers (P-Ex. FF-6). The Student also had poor focusing and attending skills and required frequent breaks to complete a lesson; and Reading and writing were both non preferred tasks and he needed significant redirection and a regular reinforcement schedule (P-Ex. FF-6). He also had a tendency to try to escape challenging academic tasks by asking for frequent and repetitive bathroom breaks (P-Ex. FF-6-7). When frustrated, he would tantrum or elope (P-Ex. FF-7). A Behavior Intervention Plan was created to address his inability to focus and attend and to address his challenging behaviors (P-Ex. K; FF-7). The Student also had a sensory diet and other sensory integrative techniques to address his sensory issues, to promote an optimal state of arousal for learning and to reduce behaviors (P-Ex. EE; FF-7). The Student was selfdirected, did not notice the activities others are engaged in, did not attempt to join in activities with others, and although he was able to express his wants and needs, he used as few words as possible, making it difficult to understand him (P-Ex. FF-7). He had difficulty expressing emotions appropriately and understanding the consequences of his behavior and needed significant social support throughout the day (P-Ex. FF-7).

During the 2020/21 school year, the Student was provided with a 1:1 paraprofessional to help implement his behavior plan, assist with his sensory diet, and help with his attentional deficits (P-Ex. FF-7). He was also provided with Speech Language Therapy four times weekly, PT two times weekly, OT three times weekly, and Counseling twice weekly on an individual basis and once in a group (P-Ex. G; P; Q; R; S; T; U; V; W; X; Y; Z; AA; BB; CC; DD; FF-7). Implementation of the Student’s BIP helped reduce his problematic behaviors and helped him to participate more in learning activities throughout the 2020/21 school year (P-Ex. FF-7).

Across all subjects, he struggled with a short attention span, and required frequent sensory activities, external motivators, a frequent reinforcement schedule, and constant feedback (P-Ex. FF-8). He benefited from his discrete trial program which included a lot of repetition, carrying over of mastered skills to the natural environment, and consistent review of mastered skills for retention and maintenance (P-Ex. FF-8). For his instructional needs, the Student’s paraprofessional worked with him to teach him skills he would not be able to learn in a group setting and prompted him during group instruction and activities to help him stay focused and remain seated, as well as prompted him to facilitate learning and follow group directions (P-Ex. FF-8). When the Student became frustrated and engaged in problematic behaviors like throwing a tantrum or engaging in self-stimulatory or impulsive behaviors, his teachers and the paraprofessional worked together to address the problematic behaviors and reinforced appropriate behaviors (P-Ex. FF-8). His teachers also sought to minimize his inappropriate behaviors using a variety of techniques, which were set forth in his behavior intervention plan (P-Ex. FF-8-9).

The Student was in a class with five other students during the 2020/21 school year, each who had their own 1:1 paraprofessional (P-Ex. FF-9). The students presented similarly in that they were all on similar levels developmentally and were appropriate peers for the Student (P-Ex. FF-9). The class used the Common Core curricula, with adaptations including breaking down skills and teaching them in small increments, using visually stimulating materials with a lot of repetitions, and using core vocabulary (P-Ex. FF-9).

In Speech, the Student worked on improving his expressive language, receptive language and his pragmatic language over the course of the 2020/21 school year (P-Ex. FF-10). His therapist noted that he made progress in all areas, but that he was not consistent in his ability to demonstrate his expressive language skills (P-Ex. FF-10). Although he relied heavily on visuals to help him with his expressive language goals at the outset of the school year, he became less dependent on visual prompts as the year progressed and was able to improve his receptive language skills as demonstrated by following two step directions, but his performance was variable (P-Ex. FF-10). The Student improved over the course of the school year in pragmatic language (P-Ex. FF-10). He progressed with all of his goals, but still needs significant support, which was noted to be a big concern at home as well (P-Ex. FF-10).

In OT, the Student worked to address his sensory processing challenges, his visual motor integration challenges, and his fine motor coordination (P-Ex. FF-10). Using a combination of social stories, a sensory diet and regular practice with sensory activities, he became more self aware of his sensory needs over the course of the 2020/21 school year (P-Ex. FF-10). A weighted cap helped him bang his head less often and he improved in his ability to transition from one task to another, and his fine motor skills and visual motor integration improved somewhat over the course of the school year (P-Ex. FF-10). He continued to need support in all areas, especially in the area of sensory integration, but overall made steady progress with all of his occupational therapy goals (P-Ex. AA; FF-10). In PT, the Student worked on his overall coordination, strength, endurance and balance (P-Ex. FF-10). Overall, he did well with his PT goals but required quite a bit of verbal and physical cues to participate in PT tasks (P-Ex. FF-10-11).

In Counseling, the Student worked on pragmatic language as well as social problem solving (P-Ex. FF-1). It was observed that the Student was quite impulsive and could not demonstrate appropriate behaviors even when he knew he was behaving inappropriately (P-Ex. FF-11). He needed multiple prompts to acknowledge others (P-Ex. FF-11). Overall, he progressed but still needed a lot of work in reducing his impulsive and self-stimulatory behaviors, as well as acknowledging others (P-Ex. FF-11). The Student also participated in group therapy sessions, with the support of his 1:1 paraprofessional which helped him become regulated and prepared for learning (P-Ex. F; FF- 11).

With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, the Student made progress during the 2020/21 school year.

The Student made progress in participating meaningfully in either a one to one or a small group setting, with a heavy schedule of reinforcement (P-Ex. FF-11). His progress was assessed based on whether he mastered his individual goals and how much prompting and support he needed while working on his goals and while participating in individual and group instruction (P-Ex. FF-11). They worked on many individualized goals in various domains in order to build stamina, attention and academic readiness, and academic skills (P-Ex. FF-11). The Student also made progress towards his Educational Goals and did particularly well in reading and math, despite his significant attentional deficits and sensory challenges (P-Ex. L; FF-11). His behavior intervention plan, sensory diet, and one to one discrete trial program helped him demonstrate mastery on a large number of rigorous academic goals (P-Ex. FF-12). He still needed quite a bit of support in the area of engaging with his environment and his teachers, and reducing his impulsive behaviors, but progressed in these areas as well (P-Ex. FF-12). The Private School also maintained consistent communication with the Parent to provide them with support for working with the Student outside of school (P-Ex. FF-12).

According to the Parent, the Student did very well during the 2020/21 school year with the combination of one to one support from his paraprofessional, his teachers and his related service providers, as well as his small class size (P-Ex. GG-7). The Parent was informed that the Student was progressing with all of his individual goals and had mastered many of his reading and math goals (P-Ex. GG-7). Despite having a hard time focusing, the Student became a more fluent reader, his word reading skills improved and he did a better job at retelling or answering questions about his reading; his spelling also improved; and his math skills improved quite a bit (P-Ex. GG-8). In addition, he demonstrated that he was beginning to understand how his behaviors impacted other people, which was an important first step towards his behavior improving (P-Ex. GG-8). Based on all of the above, I find that the Private School is an appropriate placement for the Student for the 2020/21 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District. Despite not being sure if a 10-day notice was sent to the District, the District was aware that the Student was attending the Private School and was aware that the Parent had previously brought a tuition reimbursement claim, which was in the process of being litigated. The District did not present any evidence that a 10-day notice was not sent, and did not allege any harm based on any failure of the Parent to send the notice.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2020/21 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to direct funding for the 2020/21 school year. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

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

1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2020/21 school year.

SO ORDERED

DATED: June 22, 2023

Vanessa M. Gronbach

Vanessa M. 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.

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. Impartial Hearing Request 12/9/22 10pp.

B. Individualized Education Program 5/6/20 17pp.

C. Enrollment Contract 7/5/20 3pp.

D. Attendance 2020-2021 1p.

E. Tuition Affidavit 4/28/23 1p.

F. Schedule 2020-2021 1p.

G. Related Service Schedule 2020-2021 1p. H Mission Statement Undated 2pp. I Remote Learning Plan 2020-2021 2pp.

J. Annual Educational Goals 2020-2021 5pp. K Behavior Intervention Plan 2020-2021 10pp.

L. Final Educational Report 6/15/20 5pp.

M. Initial Educational Report 11/20/20 7pp.

N. Mid-Year Educational Report 2/3/21 3pp.

O. Final Educational Report 6/15/21 4pp.

P. Final Physical Therapy Report 6/19/20 2pp.

Q. Initial Physical Therapy Report 11/15/20 4pp.

R. Mid-Year Physical Therapy Report 2/9/21 2pp.

S. Final Physical Therapy Report 6/7/21 3pp.

T. Final Speech Report 6/17/20 2pp.

U. Initial Speech Report 11/15/20 5pp.

V. Mid-Year Speech Therapy Report 2/18/21 3pp.

W. Final Speech Therapy Report 5/26/21 3pp.

X. Final Occupational Therapy Report 6/28/20 3pp.

Y. Initial Occupational Therapy Report 11/11/20 11p.

Z. Mid-Year Occupational Therapy Report 3/10/21 3pp.

AA. Final Occupational Therapy Report 6/14/21 3pp.

BB. Final Counseling Report 7/10/20 3pp.

CC. Initial Counseling Report 11/10/20 5pp.

DD. Final Counseling Report 5/10/21 3pp. EE Sensory Diet 11/11/20 3pp.

FF. School Administrator Affidavit 5/30/23 13pp.

GG. Parent Affidavit 5/31/23 8pp.

Footnotes

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

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

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