New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243830

Student’s Name: [REDACTED]

Home District: [REDACTED]

Service District: [REDACTED]

Impartial Hearing Officer: Ginger James

Date of Filing: December 15, 2022

Hearing Requested By: Parent

Dates of Hearing: June 9, 2023, June 23, 2023, June 26, 2023, July 14, 2023 and August 9, 2023 Record Close Date: August 19, 2023

Date of Decision: October 14, 2023

Time Sensitive: No

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 3, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 13, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 1, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 18, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 16, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 30, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 9, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

[REDACTED] Speaking Interpreter

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 23, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

[REDACTED] Speaking Interpreter

For the Department of Education:

[REDACTED], District Representative

[REDACTED], DOE School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 26, 2023

For the Student:

[REDACTED], Parent #1, Pro Se

[REDACTED] Speaking Interpreter

For the Department of Education:

[REDACTED], District Representative

[REDACTED], DOE School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 14, 2023

For the Student:

[REDACTED], Parent #2, Pro Se

[REDACTED] Speaking Interpreter

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 9, 2023

For the Student:

[REDACTED], Parent #2, Pro Se

[REDACTED] Speaking Interpreter

For the Department of Education:

[REDACTED], District Representative

[REDACTED], DOE School Psychologist

INTRODUCTION

On December 15, 2022, Parent #1, 1 proceeding pro se, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) ^[2], alleging that the DOE failed to offer Student a free appropriate public education (“FAPE”) for the 2022-2023 school year (Ex. 1). In their DPC, Parent #1 alleges that the recommendation by the Committee on Special Education (“CSE”) of a 6:1+1 classroom setting is inappropriate for Student, and that Student would “fit better” in, benefit from, and improve in an 8:1+1 setting (Ex. 1-2). Through the course of the proceedings, Parents^[3] explained that: they disagreed with the results of an evaluation the DOE had conducted; the DOE failed to consider the impact of Parent #2’s medical condition on Student, including improvements Student made as Parent #2’s medical condition improved; and Student is not grouped with peers on their level in the 6:1+1 setting (PHC Tr. dated 2/3/2023 pp. 10-11, 16-17; SC #2 Tr. dated 3/1/2023 pp. 54, 55; SC #4 Tr. dated 5/16/2023 p. 119; SC #5 Tr. dated 5/30/2023 pp. 139-140; Tr. dated 6/9/2023 pp. 160-167; Tr. dated 6/23/2023 pp. 188, 197-198, 204-206; Tr. dated 6/26/2023 pp. 263-265, 266; Tr. dated 8/9/2023 pp. 35-36, 50, 74-75). ^[4]

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. The pronoun “they” is used as needed. Additionally, through the course of the initial proceedings, it became clear that Parent #1 sought an Interim Order compelling the DOE to fund an independent educational evaluation (“IEE”) in the form of a neuropsychological evaluation (PHC Tr. dated 2/3/2023 pp. 8-11, 13-15, 20; SC #1 Tr. dated 2/13/2023 pp. 30-31, 41, 42-43; SC #2 Tr. dated 3/1/2023 pp. 52-53, 60). As ultimate relief, Parents seek that I order the CSE to return Student to an 8:1+1 classroom setting.

In light of the foregoing and as more fully discussed below, I find that the District met its burden to prove that it offered Student a FAPE for the 2022-2023 school year. Accordingly, I decline to order that the CSE return Student to an 8:1+1 classroom setting.

PROCEDURAL HISTORY

As of December 15, 2022, the date of the filing of the DPC, Student was attending Public School in a District 75 verbal behavior 6:1+1 classroom for their 1st grade year (PHC Tr. dated 2/3/2023 p. 10; Tr. dated 6/26/2023 pp. 236, 247; Tr. dated 8/9/2023 p. 72).

After the filing, the Resolution Period began. It ended on January 6, 2023.

On January 30, 2023, I was appointed Impartial Hearing Officer (“IHO”) for this case.

On February 3, 2023, Parent #1 and District Representative met with a Settlement Officer for a Settlement Conference and thereafter met with me for a Pre-Hearing Conference (“PHC”).^[5] At the PHC, District Representative explained that updated assessments were needed to help each Party “make some informed decisions” and because Student had not been “evaluated thoroughly” since entering elementary school (PHC Tr. dated 2/3/2023 pp. 8-9). Understanding that Parent #1 was proceeding pro se, District Representative hoped to facilitate the evaluation through an Interim Order for an IEE (PHC Tr. dated 2/3/2023 p. 9). Parent #1 expressed disagreement with the District’s prior evaluation and stated that they wanted an independent evaluation and needed assistance to find an evaluator (PHC Tr. dated 2/3/2023 pp. 10-11, 13-15, 20). Parent #1 also explained some of the background of this matter, including why they believed the District moved Student from an 8:1 classroom setting to a 6:1 setting and why they disagreed with the placement (PHC Tr. dated 2/3/2023 pp. 10-11). Parent #1 stated their reasons for distrusting the DOE (PHC Tr. dated 2/3/2023 pp. 12, 15, 19), as well as that they wished to secure representation in this matter (PHC Tr. dated 2/3/2023 pp. 16, 17-18, 19, 20). I informed the Parties that although I did not want to delay an evaluation, I would delay ordering one pending Parent #1 securing representation (PHC Tr. dated 2/3/2023 pp. 18-19). The Parties agreed to meet on February 13, 2023, for an update on whether Parent #1 would be represented by an attorney or advocate (PHC Tr. dated 2/3/2023 pp. 21-23).

On February 3, 2023, after the conference, District Representative and I each emailed Parent #1 a list of educational advocates and attorneys (IHO Ex. VI; IHO Exhibit VII).

On February 7, 2023, Parent #1 requested that the District, including School Psychologist, help Parent #1 locate an independent neuropsychologist to evaluate Student (Ex. 12).

On February 13, 2023, Parent #1 and District Representative appeared before me for the Status Conference. Parent #1 reiterated that they had a right to an independent evaluation paid for by the DOE, but also that Parent #1 needed the District’s help to find an evaluator because they had been unable to locate one (SC #1 Tr. dated 2/13/2023 pp. 30-31, 41, 42). District Representative suggested that Parent #1 send a letter to the school Psychologist and the school’s Principal asking for assistance (SC #1 Tr. dated 2/13/2023 pp. 42-43). Parent #1 relayed that they had difficulty finding an attorney despite using the resources District Representative and I had provided (SC #1 Tr. dated 2/13/2023 pp. 32-33). I granted the Parties’ request to extend the compliance date, in part, so that Parent #1 could continue their search for an advocate or attorney (SC #1 Tr. dated 2/13/2023 pp. 33-40). I scheduled the next Status Conference for March 1, 2023 (SC #1 Tr. dated 2/13/2023 p. 40). On March 1, 2023, Parent #1 and District Representative appeared before me for the second Status Conference. Earlier that morning, I emailed Parent #1 OATH’s new Special Education Hearings Division (“SEHD”) Pro Se Parent Packet (SC #2 Tr. dated 3/1/2023 pp. 51-52; IHO Ex. VI; IHO Ex. VI). Parent #1 reiterated that they wished to be represented, but they had been unable to find an attorney or advocate at no cost and they reported that there were significant waitlists (SC #2 Tr. dated 3/1/2023 p. 52). Regarding the IEE, Parent #1 relayed that School Psychologist informed them that the search for an independent evaluator could take months (SC #2 Tr. dated 3/1/2023 pp. 52-53). Parent #1 again expressed distrust over a DOE-conducted evaluation of Student (SC #2 Tr. dated 3/1/2023 p. 55). Parent #1 was willing to delay the impartial hearing to have the IEE conducted (SC #2 Tr. dated 3/1/2023 p. 60), and District Representative agreed that the IEE would be helpful to Parent #1 (SC #2 Tr. dated 3/1/2023 p. 60). Parent #1 stated that they would be amenable to having the District move Student from the current school if that meant Student could be placed in an 8:1 classroom setting because Student was not progressing in the 6:1 setting (SC #2 Tr. dated 3/1/2023 pp. 53-56).^[6] I granted the Parties’ request to extend the compliance date to allow additional time for the evaluation and for Parent #1 to secure representation (SC #2 Tr. dated 3/1/2023 pp. 62-65), and I scheduled the next Status Conference for April 18, 2023 (SC #2 Tr. dated 3/1/2023 pp. 67-69).

On March 22, 2023, I issued an Interim Order granting an IEE in the form of a neuropsychological evaluation (IHO Ex. X).

On April 18, 2023, Parent #1 and District Representative appeared before me for the third Status Conference. Although the DOE had made arrangements for a specific evaluator to conduct the evaluation, that person did not contact Parent #1 directly to schedule an appointment (SC #3 Tr. dated 4/18/2023 pp. 79-83). Parent #1 had been unable to search for an attorney and wanted more time to do so (SC #3 Tr. dated 4/18/2023 pp. 78-79, 88-90, 91). Parent #1 also requested the services of a translator (SC #3 Tr. dated 4/18/2023 p. 89). Although they appeared to have understood everything being communicated at all times during the proceedings up to that point, Parent #1 was concerned about being able to “express better the situation of [Student]” if they did not have representation (SC #3 Tr. dated 4/18/2023 pp. 89-90). Parent #1 stated that they did not require the translator for the next status conference, but only for the hearing if they did not have representation (SC #3 Tr. dated 4/18/2023 pp. 90-91). Finally, Parent #1 requested that the District move Student to another school close to their home (SC #3 Tr. dated 4/18/2023 pp. 86-87). I granted the Parties’ request to extend the compliance date (SC #3 Tr. dated 4/18/2023 pp. 83-84) and scheduled the next Status Conference for May 16, 2023 (SC #3 Tr. dated 4/18/2023 pp. 84-85).

On May 16, 2023, Parent #1 and District Representative appeared before me for the fourth Status Conference. Parent #1 was unable to secure representation (SC #4 Tr. dated 5/16/2023 pp. 97-98). Regarding the IEE, Parent #1 had begun to call agencies recommended by the DOE, but they had not yet scheduled an appointment for Student’s evaluation (SC #4 Tr. dated 5/16/2023 p. 98). The DOE had been trying to locate an evaluator, as well (SC #4 Tr. dated 5/16/2023 pp. 98-103, 110, 126). The Parties and I discussed whether I could decide this matter without the evaluation (SC #4 Tr. dated 5/16/2023 p. 104). Parent #1 reiterated that they only wanted Student to be moved back to an 8:1+1 classroom setting and was concerned about how long the process was taking (SC #4 Tr. dated 5/16/2023 pp. 105-107, 108, 117-118). District Representative explained that Parent #1 made a “very good point that in fact [Parent #1 is] not asking . . . for a less restrictive [environment] but it is within District 75” (SC #4 Tr. dated 5/16/2023 p. 106). Parent #1 reiterated their concerns about proceeding without representation but stated that as much as they wished to have an advocate, they would proceed without one (SC #4 Tr. dated 5/16/2023 pp. 107, 108, 119, 122-123). I reminded the District that they bore the burden of proof (SC #4 Tr. dated 5/16/2023 pp. 116, 122), and I discussed disclosure with the Parties (SC #4 Tr. dated 5/16/2023 pp. 116-121). I also explained how the hearing would proceed (SC #4 Tr. dated 5/16/2023 pp. 120-122, 125-126). I granted the Parties’ request to extend the compliance date (SC #4 Tr. dated 5/16/2023 pp. 111-112). I scheduled a Status Conference for May 30, 2023 (SC #4 Tr. dated 5/16/2023 pp. 112-113, 115) and the Due Process Hearing (“DPH”) for June 9, 2023 (SC #4 Tr. dated 5/16/2023 pp. 112-116). I also reminded Parent #1 to inform me if they obtained representation (SC #4 Tr. dated 5/16/2023 p. 115). I explained that I would arrange for a translator for the next conference and for the DPH (SC #4 Tr. dated 5/18/2023 pp. 123-125). On May 30, 2023, Parent #1 and District Representative appeared before me for the fifth Status Conference.^[7] Public School had made an appointment for Student to be evaluated on June 6, 2023 (SC #5 Tr. dated 5/30/2023 pp. 136-137). The Parties and I discussed the disclosure Parent #1 had sent on May 20, 2023 (SC #5 Tr. dated 5/30/2023 pp. 137-140). Parent #1 expressed their concern about proceeding without representation, but stated, “I do not have an attorney, and I will be representing [Student]” (SC #5 Tr. dated 5/30/2023 pp. 141, 143). I reminded Parent #1 that I had sent them the Pro Se Parent Packet twice (SC #5 Tr. dated 5/30/2023 p. 144). I also reminded the Parties that the District bore the burden to prove that the decision to move Student to the 6:1+1 setting was appropriate (SC #5 Tr. dated 5/30/2023 pp. 141, 142), and I explained how the hearing would proceed (SC #5 Tr. dated 5/30/2023 pp. 143-144).

On June 9, 2023, Parent #1 and District Representative appeared before me for commencement of the DPH. I addressed the issues, remedy sought, burdens of proof, and generally, how the hearing would proceed (Tr. dated 6/9/2023 pp. 153-156). Parent #1 relayed that the IEE had been conducted, but that they were awaiting the final report (Tr. dated 6/9/2023 pp. 155-156). District Representative sought to introduce Exhibits 1 through 12 (Tr. dated 6/9/2023 pp. 156-160). Parent #1 disagreed with the evaluations the District had conducted in November 2022, and expressed frustration over the District’s failure to provide evaluations from when Student had been in an 8:1 classroom setting and the District’s delay in evaluating Student once the IEE had been ordered (Tr. dated 6/9/2023 pp. 160-167). I admitted all of the District’s exhibits into evidence (Tr. dated 6/9/2023 p. 166). Parent #1 sought to introduce various exhibits (Tr. dated 6/9/2023 pp. 166-169). District Representative objected to admission of a letter from a hospital regarding Parent #2’s medical diagnosis (Tr. dated 6/9/2023 pp. 169-170). I admitted all of Parent #1’s documents as IHO Exhibit I (Tr. dated 6/9/2023 pp. 169-171). District Representative requested an extension of the compliance date to allow for continuation of the DPH due to witness availability and their availability (Tr. dated 6/9/2023 pp. 171-172).^[8] I granted it over Parent #1’s objection (Tr. dated On June 23, 2023, Parent #1 and District Representative appeared before me for continuation of the DPH. District Representative stated they believed the District had received the IEE report that day, and that they would ensure Parent #1 received it (Tr. dated 6/23/2023 pp. 185-186, 218). Parent #1 presented an opening statement (Tr. dated 6/23/2023 pp. 186-189). School Psychologist began their testimony but was unable to conclude in the time allotted (Tr. dated 6/23/2023 pp. 187-211). Parent #1 objected to School Psychologist’s testimony regarding the 6:1+1 classroom because Student is not “at the lowest level of this autism,” and thus, should not be in the “low level” class (Tr. dated 6/23/2023 p. 197). Parent #1 objected to School Psychologist’s testimony regarding testing that they had administered, explaining, in part, that Parents requested the IEE because they disagreed with the assessment and the results (Tr. dated 6/23/2023 pp. 204-206). I explained to Parent #1 why I needed to listen to the evidence and asked District Representative to consider Parent #1’s concerns as they continued their direct examination (Tr. dated 6/23/2023 pp. 206-207). I scheduled the next appearance for June 26, 2023 (Tr. dated 6/23/2023 pp. 212-217).

On June 26, 2023, Parent #1 and District Representative appeared before me for continuation of the DPH. School Psychologist continued their direct testimony (Tr. dated 6/26/2023 pp. 226-239), followed by cross-examination (Tr. dated 6/26/2023 pp. 239-244). During cross-examination, Parent #1 again raised that they had not been provided the IEE results (Tr. dated 6/26/2023 pp. 241-244), and objected to all of School Psychologist’s testimony (Tr. dated 6/26/2023 p. 244). School Psychologist testified further in response to questions by District Representative and me (Tr. dated 6/26/2023 pp. 245-246, 247-257, 257). District Representative proffered no additional witnesses but reserved the right to recall School Psychologist if I were to admit the IEE Report into evidence (Tr. dated 6/26/2023 pp. 258-259). Parent #1 stated that “the current report shows the current situation of [Student]. So I want you to take that into consideration” (Tr. dated 6/26/2023 p. 260). I explained that my determination as to whether a FAPE had been provided and scheduled the remainder of the hearing for June 23, 2023 (Tr. dated 6/9/2023 pp. 172-174; Ex. XI-1-12). rested on the information available to the District and relied upon by the District at the time the IEP was drafted, and that this report was not available to them at the time (Tr. dated 6/26/2023 pp. 259-261). I also noted that if I were to admit it, I would consider it as it potentially related to any remedy should I find a denial of a FAPE (Tr. dated 6/26/2023 p. 259). Parent #1 then testified (Tr. dated 6/26/2023 pp. 263-268). District Representative declined to cross-examine Parent #1 (Tr. dated 6/26/2023 pp. 255-256, 268). I scheduled the next appearance for July 12, 2023 (Tr. dated 6/26/2023 pp. 268-274).

On July 14, 2023, 9 Parent #2 and District Representative appeared before me for continuation of the DPH. I admitted the IEE Report (“the 2023 Neuropsychological Evaluation”) as IHO Exhibit II (Tr. dated 7/14/2023 pp. 3-5, 8-9; IHO Ex. XII-5-6). District Representative requested an adjournment because their witness was unavailable (Tr. dated 7/14/2023 pp. 9-11).^[10] District Representative asserted that the testimony was being proffered to “further substantiate” that the DOE provided Student a FAPE (Tr. dated 7/14/2023 p. 11). I adjourned the matter until August 9, 2023 for the District’s witness and for closing statements (Tr. dated 7/14/2023 pp. 13-19). I also granted an extension of the compliance date (Tr. dated 7/14/2023 pp. 19-20).

On August ^[9], 2023, Parent #2 and District Representative appeared before me for the conclusion of the DPH. I requested prior IEPs from July 2021, March 2022 and May 2022, and admitted them as IHO Exhibits III, IV and V, respectively (Tr. dated 8/9/2023 pp. 30, 38-39). Parent #2 requested to re-open their direct testimony to testify to a classroom observation Parents made (Tr. dated 8/9/2023 p. 32). I allowed the additional testimony over the District’s objection (Tr. dated 8/9/2023 pp. 32-38). School Psychologist testified in rebuttal (Tr. dated 8/9/2023 pp. 40-71). District Representative presented a closing statement (Tr. dated 8/9/2023 pp. 72-74), followed by Parent #2 (Tr. dated 8/9/2023 pp. 74-75).

FINDINGS OF FACT

After a full review of the record generated at the hearing, I make the following findings of fact and determinations. Unless otherwise noted, I found all witnesses credible.

Background ^[11]

Student was diagnosed with Autism Spectrum Disorder (“Autism” or “ASD”) when they were approximately two years old (Tr. dated 6/23/2023 p. 187; Ex. 3-2; IHO Ex. II-2). Student is a sweet, friendly, bright, and active young person, who enjoys participating in group activities alongside peers, listening to music, dancing, playing in the park/playground, swimming and playing with Play Dough (Ex. 2-6, 7; Ex. 3-3; Ex. 5-1, 3). Student has two younger, neurotypical siblings (Tr. dated 6/26/2023 p. 266; Ex. 3-2; IHO Ex. II-2). Student wants to imitate their siblings, such as by doing homework, and wants to play with them and show them love (SC #2 Tr. dated 3/1/2023 p. 54; Tr. dated 6/26/2023 p. 266; Ex. 3-3). In April 2021, Parent #2 had been diagnosed with [REDACTED] (Ex. 3-2; IHO Ex. I-2).

Student is classified as a student with “Autism” (Tr. dated 6/9/2023 p. 174; Tr. dated 8/9/2023 p. 72; Ex. 2-1, 29; IHO Ex. II-2; IHO Ex. III-1, 32; IHO Ex. IV-1, 4, 33; IHO Ex. V-1, 37). That classification is not in dispute.

The May 7, 2019 Committee on Preschool Education (“CPSE”) IEP and the 2019-2020 School Year On May 7, 2019,^[12] the CPSE classified Student as a Preschool Student with a Disability and recommended that Student be placed in an 8:1+2 classroom setting (“the May 2019 IEP”) (IHO Ex. I-3). The CPSE also recommended Occupational Therapy (“OT”), Physical Therapy (“PT”), Speech Language Therapy (“SLT”) and Parent Counseling and Training (“PCAT”) (IHO Ex. I-3, 5). The CPSE further recommended that a 1:1 paraprofessional be assigned to Student for behavior management to address Student’s impulsive behavior (IHO Ex. I-3, 5). The CPSE recommended that all services be provided on a 12-month basis (IHO Ex. I-3, 5).

For the 2019-2020 school year, Student attended a preschool that could implement the May 2019 IEP (IHO Ex. I-6). As of December 20, 2019, Student required a “high level of sensory input,” and would engage in certain behaviors, including some “unsafe behaviors,” when not provided with that input (IHO Ex. I-7). During that time, Student would randomly use single words and some signs to express themselves and to label items (IHO Ex. I-7, 8). Student did not answer questions or respond to prompts, cues and modeling (IHO Ex. I-8).

Parent #2’s Diagnosis On April 1, 2021, Parent #2 was diagnosed with [REDACTED] ([REDACTED]) (IHO Ex. I-2). Parent #2 had been in treatment from April 2021 until the end of December 2021 (IHO Ex. I-2). As of February 7, 2023, Parent #2 “continues suffer from significant sequalae and long-term side effects from treatment” (IHO Ex. I-2). Parent #2’s diagnosis has impacted Student (Tr. dated 6/23/2023 pp. 187, 188; Tr. dated 6/26/2023 pp. 263-264; Tr. dated pp. 8/9/2023 pp. 74-75).

The April 6, 2021 IEP ^[13] On April 6, 2021, the CSE convened in advance of Student’s transition to kindergarten to determine Student’s eligibility for special education and related services (IHO Ex. III-1, 31, 34). Parent #1 attended the meeting (IHO Ex. III-34). The CSE classified Student as a student with Autism (IHO Ex. III-1, 32). Parent #1 expressed concern that Student’s skills had regressed as a result of the extended school closures necessitated by the COVID-19 pandemic (IHO Ex. III-3, 33). At the time, Student exhibited difficulty with most language-based concepts (IHO Ex. III-2). Student produced limited, sporadic vocalizations, spoke at a soft volume and used single words or short phrases to communicate (IHO Ex. III-2). Student could match and sort objects by attributes, rote count from 1 to 20, count up to five objects and identify the first letter of their name (IHO Ex. III-1). Student inconsistently identified colors, body parts, animals and common objects, could not label a variety of objects by categories, could not use or identify verbs, needed assistance following two-step directions, and did not respond to yes/no or “wh” questions with independence (IHO Ex. III-2). Student was trialing an augmented communication device (IHO Ex. III-2). Parent #1 explained that they wanted Student to develop their communication skills and wanted Student to receive an assistive technology device (“ATD”) (IHO Ex. III-3, 33).

The CSE and Parent agreed that “[g]iven [Student’s] significant cognitive, communication, social[-]emotional, and adaptive delays,” Student required placement in a “specialized District 75 program with instruction rooted in the principles of applied behavior analysis (ABA) to best address [Student’s] functional communication and pre-academic readiness skills” (IHO Ex. III-3, 33). The CSE recommended that Student be placed in a special education classroom in an 8:1+1 setting for English Language Arts (“ELA”), Math, Social Studies and Sciences (“the core subjects”) (IHO Ex. III-26, 32). They also recommended: individual OT, three times per week for 30 minutes; individual PT, two times per week for 30 minutes; individual SLT three times per week for 30 minutes; and PCAT one time per month for 60 minutes (IHO Ex. III-3, 6, 27, 32, 33-34). The CSE further recommended that a full-time paraprofessional be assigned to Student to assist with toileting skills (IHO Ex. III-6, 27, 34). The CSE recommended various management needs (IHO Ex. III-6-7). The CSE did not recommend assistive technology (“AT”) for Student’s communication needs because an evaluation was in progress (IHO Ex. III-33). They did not recommend a Behavior Intervention Plan (“BIP”) (IHO Ex. III-7, 33). The CSE considered placement in a general education setting, placement in a 12:1+1 classroom in a community school or in a specialized school, and placement in an Integrated Co-Teaching (“ICT”) classroom but determined that each placement was insufficient to address Student’s needs (IHO Ex. III-34). The CSE also considered placement in a 6:1+1 classroom but determined that it was too restrictive at the time (IHO Ex. III-34). The IEP was to be implemented on July 1, 2021 (IHO Ex. III-1, 26-27), and all special education and related services were to be provided for 12 months (IHO Ex. III-28, 32). The April 20, 2021 CPSE IEP On April 20, 2021, the CPSE reconvened to conduct an annual review and to develop an IEP for the remainder of the 2020-2021 school year (IHO Ex. I-9, 10). The CPSE again classified Student as a Preschool Student with a Disability and recommended that Student remain in an 8:1+2 classroom setting (IHO Ex. I-9). The CPSE also recommended OT, PT, SLT and PCAT and that a 1:1 “aide” be assigned to Student (IHO Ex. I-9). The CPSE determined that Student required the provision of services on a 12-month basis (IHO Ex. I-9). The CPSE did not recommend AT because Student required an evaluation to determine Student’s AT needs (IHO Ex. I-9).

The March 9, 2022 CSE IEP On March 9, 2022, the CSE convened to conduct an annual review of Student’s IEP (IHO Ex. IV-

1. 33). Parent #1 attended the meeting (IHO Ex. IV-2, 36). The CSE relied upon the Student Annual Needs Determination Inventory (“SANDI”) Assessment which was conducted in Fall 2021 and Winter 2022^[14] (IHO Ex. IV). Student’s scores increased in various areas between the two assessments as follows: from 19 to 60 out of 436 in Reading; from 19 to 58 out of 276 in Writing; and from 21 to 37 out of 396 in Math (IHO Ex. IV-1). However, Student was still at a pre-K level (IHO Ex. IV-3). In Reading, Student started to: demonstrate certain skill sounds; point to five familiar age-appropriate objects; and identify letters (IHO Ex. IV-1, 3). In Writing, Student was able to trace lines, basic shapes, letters and numbers (IHO Ex. IV-1, 3). In Math, Student could count five objects with 1:1 correspondence and place the numbers 1 through 10 in sequence (IHO Ex. IV-1, 3). Student could not identify letter sounds, answer “wh” questions, write letters of the alphabet, or count to 10 (IHO Ex. IV-1). The CSE also relied on the Formative Assessment of Standards Test (“FAST”) conducted in October 2021 and March 2022 (IHO Ex. IV-2). Student remained at Level 1 in ELA and Math between the two assessments (IHO Ex. IV-2). The CSE relied on a Fountas and Pinnell Reading Assessment through which Student was assessed at Level A (K) (IHO Ex. IV-2). Student could identify letters of the alphabet, trace their name, and count one to five objects using 1:1 correspondence (IHO Ex. IV-2, 3). Per teacher observation, Student had been making progress but required “consistent prompting and redirection to sit, focus and complete class activities” (IHO Ex. IV-2, 3). Student was easily distracted and would “constantly” leave their seat, and walk around opening/closing closet/locker doors, grabbing objects, etc. (IHO Ex. IV-3). Student’s attentional challenges caused their performance to be “inconsistent” across all subjects (IHO Ex. IV-3). In terms of adaptive behavior, Student could follow the classroom schedule and rules with maximal prompting and made progress communicating wants and needs using words and word approximations (IHO Ex. IV-3). However, Student would yell, cry, jump out of their seat, and push or hit others when frustrated or upset (IHO Ex. IV-3). Student would become frustrated when presented with a non-preferred task or when a request for or access to desired items was denied (IHO Ex. IV-3). Student benefitted from working with 1:1 support or in small groups, as well as with tools and supports such as visual directions, repetition, verbal and visual cues to remain on task, hands-on tasks, a “first-then” board, working for preferred items and having tasks broken down (IHO Ex. IV-4, 5).

In terms of speech and language, Student’s ability to follow one- and two-step directions was emerging (IHO Ex. IV-4). Student inconsistently identified pictures in a field of three, had difficulty identifying the function of a given object, used gestures and one-to-three-word utterances to express wants and needs, and used labels for words (IHO Ex. IV-4). Parent #1 confirmed that Student used one-to-three-word utterances (IHO Ex. IV-4). Parent #1 stated that Student had a hard time following directions at home, explaining that Student’s sensory issues were the main reason for Student having a hard time at home and school (IHO Ex. IV-5, 35). Parent #1 expressed that they wanted Student “to follow directions and start speaking more” (IHO Ex. IV-5, 35). The CSE discussed the possibility of moving Student to “a smaller classroom setting with a strict focus on functional skills” to help Student progress in that area (IHO Ex. IV-5, 35). Parent #1 agreed, and the CSE Team agreed to discuss the possible move in May (IHO Ex. IV-5, 35). The CSE identified some of Student’s needs as follows: following daily routines and transitioning among tasks; working independently on non-academic activities for five minutes; following one- and twostep directions; identifying all letter sounds; labeling items; spontaneously requesting at least 10 different items per day; and independently counting 1 to 20 objects (IHO Ex. IV-5). Speech and language functional needs included: following one- and two-step related directions involving objects, actions and spatial concepts; identifying objects in a field of three; labeling functional vocabulary; identifying and labeling the function of objects; requesting desired items using twoand three-word combinations; greeting others; participating in structured activities; and turn-taking (IHO Ex. IV-5).

In terms of social development, Parent #1 expressed that they wanted Student to decrease aggressive behaviors (IHO Ex. IV-6). Student’s aggressive behaviors had decreased, but Student required verbal prompting to use words to communicate instead of pushing and hitting others (IHO Ex. IV-6, 9). Parent #1 was also concerned about Student’s display of self-directed, sensoryseeking and self-stimulating behaviors and that Student was easily distracted by verbal stimuli (IHO Ex. IV-7, 9, 35). The CSE identified specific OT- and PT-related needs (IHO Ex. IV-9, 10).

The CSE recommended that Student be placed in a special education classroom in an 8:1+1 setting for the core subjects (IHO Ex. IV-10, 27, 33). They also recommended: individual OT, three times per week for 30 minutes; individual PT, two times per week for 30 minutes; individual SLT three times per week for 30 minutes; and PCAT one time per month for 60 minutes (IHO Ex. IV-4, 9, 10, 27, 33-34). The CSE further recommended that a full-time paraprofessional be assigned to Student to assist with toileting skills (IHO Ex. IV-10, 28). The CSE recommended various management needs (IHO Ex. IV-10-11). They did not recommend a BIP (IHO Ex. IV-11), but recommended AT in the form of a dynamic display Speech Generating Device (“SGD”) for Student’s communication needs (IHO Ex. IV-11, 12, 28). The CSE recommended 15 goals, including goals specifically addressing Student’s communication deficits, as well as OT and gross motor (PT) needs (IHO Ex. IV-12-25). Parent agreed with the goals (IHO Ex. IV-5, 35). The CSE considered placement in a general education setting and placement in a 12:1+1 classroom, but determined that each placement was insufficient to address Student’s needs because Student required “a more structured learning environment with an emphasis on functional academics, communication and social skills and to support [Student] due to [their] evidenced deficits in ELA, math, communication skills, fine motor skills, daily living skills and social skills” (IHO Ex. IV-35). The CSE also considered placement in a 6:1+1 classroom with a “strict focus on functional skills to help [Student] progress . . .,” but the CSE and Parent #1 decided to revisit that placement in May 2022 (IHO Ex. IV-5, 35). The IEP was to be implemented on March 25, 2022 (IHO Ex. IV-1, 26-27), and all special education and related services were to be provided for 12 months (IHO Ex. IV-28, 34). The May 11, 2022 CSE IEP On May 11, 2022, the CSE convened to revisit whether Student required placement in a 6:1+1 classroom setting (IHO Ex. V-1, 39). Parent #1 had requested a reevaluation to assess Student’s progress and the need for a smaller setting (IHO Ex. V-7, 38). In attendance were Related Service Provider/Special Education Teacher #1, Parent #1, District Representative #1, Speech-Language Pathologist (“SLP”) #1, Occupational Therapist #1 and Physical Therapist (IHO Ex. V- 40). In addition to the information relied upon in developing the March 9, 2022 IEP,^[15] the CSE reviewed a SANDI Assessment conducted in Spring 2022 (IHO Ex. V-1), an Assessment of Basic Language and Learning Skills (“ABLLS”), Sections A though H (IHO Ex. V-2, 4-6), and the results of a Functional Behavioral Assessment (“FBA”) that had been conducted on the same day as the CSE meeting (IHO Ex. V-2; Ex. 6; Ex. 7).

The SANDI Assessment showed that Student’s scores increased by about 4 points in Reading and Writing, but remained the same in Math (IHO Ex. V-1).

Results from the ABLLS revealed that Student demonstrated deficits in many categories, with assessments of skill proficiencies ranging from 3.4% to 44.7% (IHO Ex. V-2, 4-6). Specifically, in the “Reinforcer” category, Student could conduct many of the tasks, but demonstrated deficiencies in waiting without touching items and looking to the evaluator for instruction (IHO Ex. V-4). The CSE noted that mastery of these skills would enable Student to acquire skills at a greater rate (IHO Ex. V-4). In the “Visual Performance” category, Student could complete various puzzles and match items (IHO Ex. V-6). However, per the CSE, Student was not ready for higherlevel pre-math concepts because Student could not sort non-identical items and could not quickly and fluently match 10 items in 30 seconds (IHO Ex. V-6). In the “Receptive Language” category Student could identify 39 common object picture cards, but not 100 items, demonstrating Student’s weak general receptive vocabulary (IHO Ex. V-5). Student demonstrated certain body motions as assessed by the “Motor/Body Movements” category but was deficient in skills that would help Student learn to follow specific directions (IHO Ex. V-5). Student’s “Vocal Imitation” was assessed at approximately 34% (IHO Ex. V-1, 5). In the “Requests” category, Student demonstrated one out of 29 skills (IHO Ex. V-1). Student could not request 10 items and tended to request items by shape instead of by name (IHO Ex. V-5). In the “Labeling” category Student demonstrated 2.25 out of 47 skills, and in the “Intraverbal-Conversational” skills category, Student demonstrated 1.75 out of 49 skills (IHO Ex. V-2). Student could fill in the words for various songs and animal sounds for three animals but could not fill in the blanks for 10 fun items and activities (IHO Ex. V-2).

The FBA had been conducted with input from the same people who attended the CSE meeting as well as Prior School Psychologist, Student and two other teachers (“the FBA Team”) (IHO Ex. V-40; Ex. 6; Ex. 7). The target behavior was elopement and the intensity levels were identified as: 1- out of seat/area; 2- yelling; 3- running around the classroom; 4- hitting teachers, peers or self; 5- attempting to leave the classroom and/or attempting to eat non-edibles (IHO Ex. V-2; Ex. 6-1). Data collected from April 8, 2022 to April 29, 2022, a total of 10 days, revealed that these behaviors occurred on average 17.3 times per day, with an average duration of 5.2 minutes and an average intensity of 3.2 out of 5 (IHO Ex. V-2; Ex. 6-5; Ex. 7-1, 4). Elopement occurred most often when Student was being given instruction, but occurred “across all settings through the school day” (Ex. 6-3). The FBA Team considered that there had been recent changes in the home due to Parent #2’s medical diagnosis, resulting in a temporary change in primary caretaker, alterations in routine and overall changes in the home (Ex. 6-3). As a result of the assessment, the FBA Team drafted a BIP (Ex. 7).

During the meeting, Parent #1 continued to express that they wanted Student “to follow directions and start speaking more” (IHO Ex. V-7, 35). Parent #1 also continued to express that they wanted Student to be better able to express themselves and to change their behavior (IHO Ex. V-7, 39). Parent #1 informed the CSE that they wanted Student to decrease aggressive behaviors and to interact more with Student’s peers and siblings (IHO Ex. V-8). In addition, Parent #1 explained that, at home, Student could be “hyper” and struggled with sitting down to learn (IHO Ex. V-8). Parent #1 and the school counselor discussed how OPWDD 16 would help with services at home (IHO Ex. V-8). Additionally, Parent #1 and the CSE discussed the qualifications of the paraprofessional to be assigned to Student (IHO Ex. V-8). Parent continued to express their concern about Student’s self-stimulating behavior, mouthing of objects, running and inability to self-regulate (IHO Ex. V-1). Parent relayed that they were happy with everyone working with Student (IHO Ex. V-8).

The CSE identified some of Student’s needs as follows: using the Augmentative and Alternative Communication (“AAC”) device or pointing to visuals to appropriately identify needs; 17 following daily routines and transitioning among tasks; following one-step directions; scanning to sort non-identical items; waiting for one minute without engaging in problem behavior when asked to wait; and spontaneously requesting at least 10 different items per day when a reinforcer is present and the instructor asks, “[w]hat do you want?” (IHO Ex. V-7). 18 The CSE identified speech and language functional needs, including: following one- and two-step related directions involving objects, actions and spatial concepts; identifying objects in a field of three; labeling functional vocabulary; identifying and labeling the function of objects; requesting desired items using twoand three-word combinations; greeting others; participating in structured activities; and turn-taking (IHO Ex. IV-5). In addition, the CSE identified specific OT- and PT-related needs (IHO Ex. V-11, 12).

The CSE recommended that Student be placed in a special education classroom in a 6:1+1 setting for the core subjects (IHO Ex. V-12, 30-31). They maintained the related services recommendations of: individual OT, three times per week for 30 minutes; individual PT, two times per week for 30 minutes; individual SLT three times per week for 30 minutes; and PCAT one time per month for 60 minutes (IHO Ex. V-12, 13, 31). The CSE modified the recommendation for a 16 Although not defined, I find that OPWDD refers to the New York State Office for People with Developmental Disabilities. 17

This task was specifically added as a “replacement behavior” per Student’s BIP (IHO Ex. V-8). 18 Unlike the March 2022 IEP, the May 2022 IEP did not include: working independently on non-academic activities for five minutes; identifying all letter sounds; labeling items; and independently counting one to 20 objects (compare IHO Ex. IV-5 with IHO Ex. V-7). paraprofessional by assigning the individual to assist with behavior management and not toileting skills (IHO Ex. V-12, 31). The CSE determined that Student required “a small, highly structured, learning environment including repetition, verbal redirection, visual models, most[-]to[-]least prompting, explicit and direct instruction, manipulatives and related services . . .” (IHO Ex. V-12, 13). The CSE drafted 15 goals in the areas of general academics, SLT, OT and gross motor skills (IHO Ex. V-15-28).

Additionally, the CSE determined that Student benefitted from the use of: visual and verbal cues (i.e., word cards, number cards, and number lines); verbal redirection/modeling; manipulatives; first/then and token boards; class behavior charts; sensory activities; a choice time reward system; positive reinforcement and praise; and testing accommodations, including the administration of alternative assessments (IHO Ex. V-12-13, 33). The CSE recommended a BIP (IHO Ex. V-12, 13), and recommended AT in the form of a dynamic display SGD for Student’s communication needs (IHO Ex. V-12, 13, 32). The CSE considered placement in an 8:1+1 classroom but the CSE and Parent #1 agreed that Student required “a more structured learning environment with an emphasis on functional, communication and social skills and to support [Student] due to [their] evidenced deficits in communication skills, fine motor skills, daily living skills and social skills” (IHO Ex. V-39). The CSE rejected placement in a 12:1+1 classroom because it was neither structured nor supportive enough for Student (IHO Ex. V-39). The placement in a 6:1+1 classroom was to commence on September 1, 2022 (IHO Ex. V-30-31). The related services were to commence on May 25, 2022 (IHO Ex. V-31). The AT and the paraprofessional services were to commence on May 11, 2022 (IHO Ex V-31-32). All special education and related services were to be provided for 12 months (IHO Ex. V-32, 37-38).

Request for Reevaluation On September 16, 2022, Parents requested that Student be re-evaluated because they “strongly believed” that Student did not belong in a class of six students (Tr. dated 6/23/2023 pp. 201-202; Tr. dated 6/26/2023 pp. 241, 264; Ex. 11). Parents requested the reevaluation because during the Summer of 2022, Parents saw an improvement in Student, and felt that the most recent evaluation did not reflect Student’s then-current situation (Tr. dated 6/26/2023 p. 264). Parent #1 spoke with the Unit Coordinator at Public School who informed Parent #1 that there were no seats available in the 8:1+1 classroom for Student (Tr. dated 6/26/2023 p. 264). School Psychologist began the process for a reevaluation, including obtaining consent for an educational evaluation and a classroom observation, and explained that a meeting would be conducted to discuss the results with Parents (Tr. dated 6/23/2023 p. 202).

Reevaluation Process On October 12, 2022, School Psychologist conducted a Psychoeducational Evaluation of Student (Tr. dated 6/26/2023 p. 228; Ex. 5), and on October 13, 2022, they conducted a Classroom Observation (Ex. 4; Tr. dated 6/23/2023 p. 210; Tr. dated 6/26/2023 pp. 228, 229). Additionally, on October 17, 2022, DOE Licensed Clinical Social Worker (“DOE LCSW”) conducted a Social History with Parent #1 (Ex. 3; Tr. dated 6/26/2023 pp. 231, 249).^[19]

School Psychologist conducted the Psychoeducational Evaluation over 45 minutes, during which they observed Student’s behavior and administered the Kaufman Survey of Early Academic and Language Skills (“K-SEALS”) which measures early academic and language skills, including number, letter and word knowledge (Tr. dated 6/23/2023 p. 203; Ex. 2-3; Ex. 5). Student was six years and seven months old at the time (Tr. dated 6/23/2023 p. 208). Student responded well to encouragement and positive reinforcement throughout the testing (Ex. 5-1). Behaviorally, Student requested to leave the room by pointing to the door and repeatedly opening and closing it throughout the evaluation (Tr. dated 6/23/2023 p. 209; Ex. 5-1). Student also jumped, ran around the room and paced (Tr. dated 6/23/2023 p. 209; Ex. 5-1).

Academically, Student’s expressive language skills, including their ability to label pictures, name objects based on a verbal description of their attributes, count aloud and respond orally to number problems, were assessed in the “Lower Extreme” range, with an age equivalent of three years and eight months (Tr. dated 6/23/2023 p. 208; Ex. 2-3; Ex. 5-2, 3). Student’s receptive language skills, including their ability to point to numbers, letters and words, and to understand number concepts by pointing to visual stimuli, were also assessed at the “Lower Extreme” range, demonstrating an age equivalent of three years and six months (Tr. dated 6/23/2023 p. 208; Ex. 2-3; Ex. 5-2, 3). Student’s receptive and language skills were “significantly lower” than same age peers (Tr. dated 6/23/2023 p. 208). Their vocabulary skills were determined to be in the “Lower Extreme” range, demonstrating an age equivalent of two years and eight months (Tr. dated 6/23/2023 pp. 203, 207-208; Ex. 2-3; Ex. 5-3). In the Numbers, Letters and Words category, Student’s proficiency was determined to be equivalent to a child of four years and eight months (Tr. dated 6/23/2023 p. 208; Ex. 2-3; Ex. 5-3). In the Number Skills category, which included their knowledge of number concepts and ability to count, identify numbers, and solve number problems, Student was assessed in the “Lower Extreme” range (Ex. 2-3; Ex. 5-2, 3), and in the Letter and Word Skills category, Student was assessed in the “Below Average” range, with an equivalency of five years and two months (Ex. 2-3; Ex. 5-2, 3). Student could identify uppercase and lowercase letters and letter sounds but could not recognize words or decode words (Ex. 2-3; Ex. 5-2, 3).

For the Classroom Observation, School Psychologist observed Student for 25 minutes (Tr. dated 6/26/2023 pp. 228, 229; Ex. 4-1). There were three other students in class with Student at the time (Tr. dated 6/26/2023 pp. 228, 229-230; Ex. 4-1). Those students were in 2nd and 3rd grades (Tr. dated 6/26/2023 pp. 229-230). Student also had access to their 1:1 paraprofessional (Tr. dated 6/26/2023 p. 230). Student followed teacher’s directions but required several reminders not to put Play Dough in their mouth (Tr. dated 6/26/2023 p. 228; Ex. 4-1). Further, Student refused to match a picture to an item, hit the table repeatedly when asked to fold their hands and when the teacher went to help another student, and pushed their chair away from the table when asked to match another picture to an object (Tr. dated 6/26/2023 p. 228; Ex. 4-1). When the teacher asked Student to identify items on cards, Student tapped the card, occasionally made vocalizations, and occasionally answered correctly (Tr. dated 6/26/2023 p. 228; Ex. 4-1). During transitions between activities, Student yelled “no” and banged on the table (Tr. dated 6/26/2023 p. 228; Ex. 4-1). Student’s teacher confirmed that the observed behavior was typical of Student’s behavior in class (Tr. dated 6/26/2023 p. 229; Ex. 4-2). Based on the observation, especially in consideration of the fact that there were only four students with two adults in the room, School Psychologist determined that Student “requires a very high level of support and needs the adult support to get through the day” (Tr. dated 6/26/2023 p. 229). During the Social History Update, Parent #1 explained that Parent #2 had been diagnosed with [REDACTED] the year prior and was currently in remission (Ex. 3-2). Parent #1 explained that Student had been diagnosed with ASD at three years old, and that their early childhood difficulties, such as engaging in tantrums, had decreased in frequency and that Student was currently less aggressive (Ex. 3-2). Parent #1 informed DOE LCSW that Student was not learning anything at school because “the class is overstimulated” (Ex. 3-3), and that Student was not retaining information and was regressing (Ex. 3-3, 4). Parents were concerned that Student was not being challenged enough in their current classroom setting (Ex. 3-4). Regarding Student’s behavior at home, Parent #1 relayed that Student is hyperactive, communicates using one- or two-word phrases, sometimes uses an iPad, and follows simple one-step directions (Ex. 3-3). Parent #1 requested that Student be placed in a class of eight students (Ex. 3-3, 4).

As part of the reevaluation process, School Psychologist did not administer an IQ test because “in combination with the teacher reports, classroom observation and social history conducted, in addition to the education evaluation, [they] had a sufficient picture of who [Student] was as a student and could make an informed recommendation” (Tr. dated 6/23/2023 pp. 209-210).

Parents’ Classroom Visit During October 2022, Parents visited Student in their classroom (Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 pp. 35, 37, 38). The other students were “in a more worse situation than [Student]” (Tr. dated 6/26/2023 p. 265). When Parents greeted the students, only Student greeted them back (Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 p. 35). The other students were screaming, throwing toys, hitting their heads and behaving aggressively (Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 pp. 35-36). Parents were concerned that Student “ha[d] nothing more to learn from these peers,” and that Student may actually learn behaviors from the others that Student did not exhibit, which would be “regressive for [Student]” (Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 p. 36). Parents were not allowed to remain longer than a few minutes because the school was concerned that Parents would “be a disturbance” for the other students (Tr. dated 8/9/2023 p. 37). The same day, the school allowed Parents to visit a 3rd or 4th grade 8:1+1 classroom to see “how advanced the other classes are compared to the level where [Student] was” (Tr. dated 8/9/2023 p. 38). Parents had not conducted any other classroom visits that year because the District would not allow Parents to return (Tr. dated 8/9/2023 pp. 37-38).

The November 14, 2022 CSE Meeting and the Resulting IEP On November 14, 2022, the CSE convened to discuss the results of the reevaluation (Ex. 2-1, 29, 31; Tr. dated 6/26/2023 pp. 230, 231). In attendance were Related Service Provider/Special Education Teacher #2, Parent #1, Parent #2, District Representative #2/School Psychologist, SLP #2, Occupational Therapist #2, Physical Therapist, Unit Coordinator and Board Certified Behavior Analyst (“BCBA”) (Ex. 2-3, 31-32). The CSE relied upon various assessments to determine Student’s needs across multiple areas. These included the: Assessment of Basic Language and Learning Skills-Revised (“ABLLS-R”), the Essential for Living (“EFL”) Alternative Methods of Speaking Assessment, the EFL Quick Assessment, the Sensory Profile (“SP”), the School Functional Assessment (“SFA”), and the K-SEALS, as well as informal assessments and observations, including from Student’s special education teacher and related services therapists (Ex. 2-1-3, 5-10; Tr. dated 6/26/2023 p. 231; Tr. dated 8/9/2023 p. 63). The CSE also reviewed the FBA and BIP created on May 11, 2022 (Ex. 2-7), and the “prior year’s IEP” (2-5).^[20] Further, the CSE relied on input from Parent during the meeting, and through the Social History Update, the Reinforcer Checklist and a Parent Questionnaire (Ex. 2-5, 6; Ex. 3; Tr. dated 6/26/2023 p. 231). At the time, Student was attending a 6:1+1 verbal behavior classroom, as Student had been since the start of the 2022-2023 school year (Tr. dated 6/26/2023 pp. 236, 247).

Between September 2022 and October 30, 2022, Student’s teacher administered the ABLLS-R, Sections A though Z (Ex. 2-1; Tr. dated 6/26/2023 p. 232).^[21] Testing measures present levels of functional use of language for a “typical” child of two-and-one-half to five years old (Ex. 2-1). Student demonstrated deficits in many categories, with assessments of skill proficiencies ranging from 0% to 39.4.7% (Ex. 2-1). Overall, Student was assessed to be at an “early level range,” demonstrated “minimal tolerance” during testing and was determined to need prompting to effectively use language skills (Ex. 2-2). Student’s skill proficiencies in categories A through H remained largely the same since the assessment that had been administered prior to the May 2022 convening (compare IHO Ex. V-2 with Ex. 2-1). In the newly assessed categories, Student demonstrated zero skills in six categories, including in group instruction, generalized responding, and reading, writing, math, and spelling skills (Ex. 2-1). Student demonstrated relative strengths in receptive listening and imitation skills and in following some two-step directions (Ex. 2-6).

Student could follow some daily routines with prompting, including putting away their belongings and working independently for about 10 minutes on non-academic activities (Ex. 2-1, 3). In terms of “reading” skills, Student could complete a task when a “known reinforcer” was present (Reinforcer Effectiveness), could select one of six pictures from an array and point to body parts and clothing (Receptive Language), and could request at least one item once per day (Requests) (Ex. 2-4). Student could label 10 common objects and pictures, fill in words to songs and blanks to activities and identify animal sounds (Ex. 2-4). Student could imitate fine motor skills and certain other movements (Body Movements) and repeat a series of sounds presented in quick succession (Vocal Imitation) (Ex. 2-4). In terms of math skills, Student could match pictures to objects and complete certain puzzles (Ex. 2-4). Student’s writing skills included making a mark on a piece of paper and tracing letters, lines and shapes (Ex. 2-4).

Student demonstrated deficits in sorting non-identical items, receptively identifying common objects and pictures of common objects, following instructions to go to a person, following instructions to give an item to a person, imitating a sequence of motor actions, spontaneously requesting items even with prompting, labeling pictures of common items and filling in blanks regarding fun items and activities (Ex. 2-1,6). In terms of Adaptive Behavior, Student required verbal cues to assist with transitioning, prompting to carry out activities, and redirection to stay on task (Ex. 2-4).

The CSE also reviewed an EFL Quick Assessment conducted in September 2022 (Ex. 2-2). Student exhibited many spontaneous spoken words and spoken-word repetitions, could request one to three preferred items, could answer some basic questions, and could match some items and pictures (Ex. 2-2). Student exhibited “problem behavior” while having to wait, when told no and during transitions (Ex. 2-2). It was determined that Student could only follow a few directions and required “hands on” supervision at all times (Ex. 2-2). In addition, the CSE reviewed an alternative method of speaking assessment, conducted on October 30, 2022, which determined that Student would use vocal communication (Ex. 2-2). To further determine Student’s language skills, the CSE reviewed the results from the K-SEALS assessment (Ex. 2-3; Ex. 5) and considered informal assessments and observations (Ex. 2-2). Overall, the District determined that Student’s expressive, receptive, and pragmatic language skills were delayed (Ex. 2-2).

As part of the reevaluation, the CSE considered the results of the FBA that had been conducted on May 11, 2022 and that resulted in a BIP targeting elopement (Ex. 2-7; Ex. V-2; Ex. 6; Ex. 7; Tr. dated 6/26/2023 p. 238). As a result of the assessment and BIP, alternative skills being taught included requesting needs using the AAC device or preferred form of communication (Ex. 2-7, 12).

To determine OT needs, the CSE administered a SP, which revealed that Student displayed sensory seeking behaviors “across various environments at school and at home” (Ex. 2-2).

To determine Student’s PT needs, the CSE administered the SFA (Ex. 2-2-3). Student’s scores demonstrated that Student required constant supervision across all school activity settings (Ex. 2-2-3).

In addition to the testing, the CSE Team considered input from Special Education Teacher #2 and the related services providers. Student’s teacher explained that Student learns best with a “high rate of individualized learning opportunities, a consistent schedule of reinforcement and repetition” and that Student “needs materials presented in multiple facets . . . to acquire and retain skills” (Ex. 2-5). Student is a visual learner who benefits from modeling and needs an “external motivator” to complete work (Ex. 2-5). Student also responds well to positive social praise (Ex. 2-7). Further, Student continues to build their prerequisites skills, requires high-frequency prompting and redirection, and relies on the support of their behavior paraprofessional to participate in class (Tr. dated 6/26/2023 p. 232; Ex. 2-5, 7, 11).^[22]

In terms of speech, the CSE discussed that Student is an active participant in sessions but is often distracted by external stimuli (Ex. 2-5). Student requires verbal cues and physical prompts to remain seated and benefits from visual schedules (and 2-6), token boards (and 2-7), redirection and reinforcement (Ex. 2-5).

In terms of receptive language skills, Student’s ability to follow one- and two-step related directions was emerging, and they demonstrated difficulty understanding directions with spatial concepts, inconsistency in matching pictures, and identifying the function of a given object (Ex. 2-5, 6). In terms of expressive language skills, Student could express basic wants and needs using gestures and one-to-two-word utterances given cues, and could use three words if given a model (Ex. 2-5). Student would often use an attribute instead of the actual word for the object, and their ability to label functional vocabulary was emerging (Ex. 2-5). SLP #2 discussed Student’s social skills, as well (Ex. 2-5; Tr. dated 6/26/2023 p. 236). Per Parent #1, when at home, Student would request desired actions and items using one-word utterances, body language, gestures and sounds (Ex. 2-5). Student also used their vocabulary more consistently instead of the speech generating device (“SGD”) (Ex. 2-5). During the meeting, there was an “extensive conversation” about developing Student’s requesting and labeling skills (Tr. dated 6/26/2023 p. 236). SLP #2 recommended the same Speech-Language (“S/L”) recommendations (Ex. 2-5-6), with a focus on following one- and two-step related directions, requesting desired items, building vocabulary, and improving social language skills (Ex. 2-6).

Parents expressed concerns about Student being in a 6:1+1 classroom and wanted Student to be in an 8:1+1 classroom (Ex. 2-6, 31; Tr. dated 6/26/2023 p. 237). Parents also expressed concern regarding Student’s ability to request items and wanted Student to use more than one-word utterances (Ex. 2-6, 7, 31). Parent #1 stated that they wanted Student to request items more consistently, to focus, to be more aware and to use their words (Ex. 2-6, 31).^[23] The CSE Team “discussed that verbal behavior and skills like requesting items are directly taught in a 6:1+1 setting,” and that Student was working on “foundational skills in communication” in the 6:1+1 classroom (Ex. 2-6, 31; Tr. dated 6/26/2023 p. 236). The CSE Team explained that they believed the recommendation was appropriate and that Parent could pursue an impartial hearing if they wished to do so (Tr. dated 6/26/2023 pp. 237-238).

In terms of OT, the CSE identified Student’s strengths and various deficits and areas needing assistance (Ex. 2-7-8). Regarding fine motor, visual motor and graphomotor skills, Student demonstrated bilateral integration, eye-hand coordination, and visual-motor and perceptual skills (Ex. 2-7). Student could match shapes and colors and identify 15 out of 26 alphabet letters (Ex. 2-7) and demonstrated some fine motor skills (Ex. 2-8). However, Student struggled to recall letters and letter formations, required verbal cues to adjust their grasp, could not color functionally, needed hand-over-hand assistance with verbal cues to copy simple shapes and letters, and needed maximal assistance to cut with scissors (Ex. 2-7, 8). Student also demonstrated deficits in sensory processing skills (Ex. 2-8). Student displayed sensory seeking behavior, including oral sensory seeking behavior, demonstrated decreased body and safety awareness, was easily distracted by visual stimuli, and stared closely at objects (Ex. 2-8). Student benefitted from sensory input and movement breaks (Ex. 2-8). Student demonstrated decreased attention during most tasks, required maximal verbal cues, repetition of instruction, demonstration, hand-over-hand assistance, and verbal cues to either initiate or complete most tasks (Ex. 2-8). Student required sensory integration to increase focus and attention, use of visual boundary lines to increase pre-writing skills, a reward system and positive reinforcement (Ex. 2-8). Parent #1 expressed concern regarding Student’s sensory dysregulation and decreased focus, inability to write, draw and copy letters and shapes (Ex. 2-10, 31). In terms of PT, Student’s increased activity level and strong preference for self-directed/selfregulating behaviors and eloping required close supervision and extra levels of prompts or adult assistance to complete tasks timely and safely (Ex. 2-10). PT was recommended, in part, to assist in remediating gross motor skills (Ex. 2-10). These needs included walking at a relative pace with classmates to transition in a safe and timely manner, and helping Student to safely participate in a variety of play activities (Ex. 2-10). Parents expressed concern regarding Student’s ability to play on the playground alone and asked for a paraprofessional to be there with Student at all times (Ex. 2-10, 31). Parent also expressed concern about Student’s toe-walking gait and requested that it be included as a goal (Ex. 2-10, 31). Physical Therapist explained that PT goals are based on participation in school functional activities, such as the ability to transition, and that balance issues could be addressed if Student was observed falling or tripping (Ex. 2-10, 31). Parent #1 agreed to the recommended PT goals (Ex. 2-10, 31).

The CSE determined that Student requires “a structured environment with repetition and opportunities for individualized teaching in a one-to-one setting as well as generalized contexts to acquire and retain skills,” and that Student requires “multiple opportunities to demonstrate acquired skills” (Ex. 2-5, 11). The CSE further found that Student’s Autism, unique needs and various deficits “affect [their] ability to process and retain information at levels comparable to that of [their] peers within the general education setting” (Ex. 2-11). Student requires a BIP and a 1:1 behavioral paraprofessional as well as “supervision throughout the day to utilize materials when working toward a task to improve conceptual understanding, fluency, and application of skills across home and school environments” (Ex. 2-11).

The CSE recommended that Student be placed in a special education classroom in a 6:1+1 setting for the core classes in a DOE specialized school (Ex. 2-24, 29-30; Tr. dated 6/26/2023 p. 237). Specifically, the 6:1+1 classroom was to be a verbal behavior classroom (Tr. dated 6/26/2023 p. 237). The CSE maintained the related services recommendations of: individual OT, three times per week for 30 minutes; individual SLT three times per week for 30 minutes; and PCAT one time per month for 60 minutes (Ex. 2-11, 24-25, 30; Tr. dated 6/26/2023 p. 237). The CSE modified Student’s PT to individual PT, one time per week for 30 minutes and PT in a group of two, one time per week for 30 minutes (Ex. 2-24, 30; Tr. dated 6/26/2023 p. 237).^[24] The CSE maintained the recommendation for a full time paraprofessional to assist with behavioral support and a BIP (Ex. 2-11,12, 25, 30; Tr. dated 6/26/2023 p. 237). The CSE did not list an AT device or service (Ex. 2-25), but did check off the boxes indicating that Student required a “particular device or service to address their communication needs” and needed an AT device and/or service (Ex. 2-12). All special education and related services were to be provided for 12 months (Ex. 2-25). Student was provided various testing accommodations and was to participate in alternative assessments (Ex. 2-11, 26-28, 30). The CSE considered placement in an 8:1+1 special class, but the CSE Team agreed that Student required “a more structured learning environment with an emphasis on functional, communication, and social skills to support [Student] due to [their] evidenced deficits in communication skills, fine motor skills, daily living skills and social skills” (Ex. 2-31). The November 2022 IEP was to be implemented on November 29, 2022 (Ex. 2-1, 24-25).

As with the May 2022 IEP, the CSE determined that Student required “a small, highly structured, learning environment including repetition, verbal redirection, visual models, most[-]to[-]least prompting, explicit and direct instruction, manipulatives and related services . . .” (Ex. 2-5,11). The CSE listed the same management needs as listed on the May 2022 IEP, finding that Student benefitted from the use of: visual and verbal cues (i.e. word cards, number cards, and number lines); verbal redirection/modeling; manipulatives; first/then and token boards; class behavior charts; sensory activities; a choice time reward system; positive reinforcement and praise; and testing accommodations (Ex. 2-11). Those needs also included the recommendation for a “highly structured environment with direct instruction in a small group setting with additional educators,” as well as the various related services and supports, such as a BIP and a behavior paraprofessional (Ex. 2-11).

The CSE drafted approximately 14 goals for Student in the areas of general educational needs, S/L, OT and gross motor skills (PT) (Ex. 2-10, 13-23). These goals address needs identified in the IEP and include direct reference to needs identified on the ABLLS-R assessment (Ex. 2-13-23). 25 Each goal is broken down into intermediate steps and benchmarks for measuring progress (Ex. 2-13-23). 26 The IEP team discussed goals during the meeting, and Occupational Therapist and Physical Therapist answered Parents’ specific questions about the goals they had developed (Tr. dated 6/26/2023 pp. 234, 235; Ex. 2-10, 31). Parents did not express disagreement with any of the goals (Tr. dated 6/26/2023 p. 234). 27

LEGAL STANDARDS AND FRAMEWORK

Overview of FAPE Impartial Hearing Officers (“IHOs”) are tasked with determining whether a student received a free appropriate public education (“FAPE”). See 20 U.S.C. § 1415(f)(3)(E)(i); 8 NYCRR § 200.5(j)(4)(i). That determination must be made on substantive grounds and with regard to the meeting of certain procedural requirements. Id. In guiding their decision, IHOs are bound by two purposes of the IDEA: (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 to prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and of their parents are protected. See 20 U.S.C. § 1400(d)(1)(A),(B); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; R.E. v. New York City Dep't of The IEP also reflects that the ABLLS-R Assessment and data sheets would be used to assess progress 25 which would be shared with parents coinciding with report card distribution (Ex. 2-5). 26 Some of the goals were to be measured by “cold probes” (Ex. 2-13-17). School Psychologist could not explain what that term meant (Tr. dated 6/26/2023 p. 255). 27 At the DPH, Parent #1 objected to this question and answer stating that they and Parent #2 “ha[d] objected to everything in that meeting” (Tr. dated 6/26/2023 p. 234). Educ., 694 F.3d 167, 189-190 (2d Cir. 2012); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012). More specifically, the educational program must be “reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988, 1001 (2017).

Regarding procedural requirements, to deprive a student of a FAPE, the procedural inadequacies must have impeded the student’s right to a FAPE, significantly impeded the parent’s opportunity to participate in the decision-making process or deprived the student of educational benefits. See 20 U.S.C. §1415(f)(3)(E)(ii); 34 CFR § 300.513(a)(2) and 8 NYCRR § 200.5(j)(4)(ii).

Regarding the substantive requirement, as the words in FAPE indicate, students are entitled to an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998), quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP, which is at the center of the analysis, must address the “unique circumstances of the child for whom it was created." Endrew F., 137 S. Ct. at 1001. It must also be “likely to produce progress, not regression.” See Cerra v. Pawling Cent. Sch. Dist, 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 (quotations omitted).

Accordingly, an IEP must: include a statement of the student's present levels of academic achievement and functional performance; establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum; and provide appropriate special education and services. See generally 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). The IEP must be developed in consideration of the student’s: “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Brock v. N.Y. City Dep’t of Educ., 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 3 (S.D.N.Y. 2015), quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d at 224 (further citation omitted). Finally, the student's recommended program must be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 CFR § 300.114(a)(2)(i), 34 CFR § 300.116(a)(2); 8 NYCRR § 200.1(cc), 8 NYCRR § 200.6(a)(1).

Burden of Proof

Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

The District’s Position

District Representative maintains that the CSE’s recommendations contained in the November 2022 IEP, including placement in a 6:1+1 classroom along with related services of SLT, OT and PCAT, a BIP and a classroom management behavior paraprofessional, were designed to meet Student’s developmental, academic and social needs and, therefore, provided Student a FAPE (Tr. dated 6/9/2023 pp. 174-175; Tr. dated 8/9/2023 pp. 72-73). They assert that the CSE “careful[ly] consider[ed]” evaluations, teacher reports and classroom performance data (Tr. dated 6/9/2023 p. 175; Tr. dated 8/9/2023 p. 72). District Representative further maintains that the CSE meeting was duly constituted, that School Psychologist conducted the IEP meeting and personally assessed Student, and that Parent was given the opportunity to meaningfully participate (Tr. dated 6/9/2023 p. 175). The Representative contends that the students in the 6:1+1 classroom are of comparable age and functional level, that the District provided all related services as recommended, and that Student made “considerable improvements” during the 2022-2023 school year (Tr. dated 6/9/2023 p. 176). More specifically, District Representative asserts that School Psychologist provided extensive testimony (Tr. dated 8/9/2023 p. 73) that proved that the 6:1+1 setting “is appropriate, as it is a verbal behavior classroom which is based on the principle of applied behavior analysis, meaning that the student has multiple opportunities for instruction and reinforcements and that the student has also ample opportunities to learn across different settings” (Tr. dated 8/9/2023 p. 73). Furthermore, the 6:1+1 classroom is for students working on prerequisite academic skills (Tr. dated 8/9/2023 p. 73), that Student needs and benefits from a small student-to-teacher ratio (Tr. dated 8/9/2023 p. 74), and that Student can learn from peers in this setting (Tr. dated 8/9/2023 p. 74). Finally, a 6:1+1 classroom meets Student’s needs in the least restrictive environment (“LRE”) and that student would continue to benefit from placement in a 6:1+1 classroom (Tr. dated 8/9/2023 p. 74).

Parents’ Position Parents’ position is as outlined in the Introduction.

The Provision of a FAPE At the outset, I find that Parents have not challenged any recommendation by the CSE other than placement in a 6:1+1 classroom setting and the actual classroom placement (SC #4 Tr. dated 5/16/2023 pp. 108, 117-118; Tr. dated 6/23/2023 pp. 187, 189; Tr. dated 6/26/2023 pp. 264-265; Tr. dated 8/9/2023 p. 75). However, to understand whether that recommendation was appropriate, and thus, provided Student a FAPE, I must consider all the circumstances that affect a FAPE determination in this matter.

As described more fully below, I find that the District met its burden to prove that it provided Student a FAPE for the 2022-2023 school year, and that the recommendation for a 6:1+1 classroom was appropriate. Specifically, I find that the District was responsive to Parents’ requests, including by conducting the requested reevaluation. I also find that the District conducted a proper reevaluation, which armed it with sufficient evaluative data to draft a proper statement of Student's then-present levels of academic achievement and functional performance (“PLAAFPs Statement”). Additionally, the CSE drafted annual goals designed to meet Student's needs and to enable Student to make progress. I have determined that the District allowed Parent a meaningful opportunity to participate in the decision-making process Finally, I find that the District provided appropriate special education and related services, and did so in the LRE.

Parents’ Request to Reevaluate Student The District promptly addressed Parents’ request to reevaluate Student. A district must conduct an evaluation whenever the student’s educational or related services warrant a reevaluation or if the student's parent or teacher requests a reevaluation. See 34 CFR § 300.303(a)(2); 8 NYCRR § 200.4(b)(4).

On September 16, 2022, Parents requested that Student be re-evaluated because they disagreed with the CSE’s recommendation of a 6:1+1 placement for Student (Tr. dated 6/23/2023 pp. 201-202; Tr. dated 6/26/2023 pp. 241, 264; Ex. 11). School Psychologist began the process for a reevaluation, including obtaining consent for various observations (Tr. dated 6/23/2023 p. 202). Then, between October 12, 2022 and October 17, 2022, the CSE conducted a Psychoeducational Evaluation (Tr. dated 6/26/2023 p. 228; Ex. 5), a Classroom Observation (Tr. dated 6/23/2023 p. 210; Tr. dated 6/26/2023 pp. 228, 229; Ex. 4), and a Social History Update with Parent #1 (Ex. 3; Tr. dated 6/26/2023 pp. 231, 249). In addition, between September 2022 and October 30, 2022, Student’s teacher administered the ABLLS-R (Ex. 2-1; Tr. dated 6/26/2023 p. 232). These evaluations and assessments, in addition to other assessments and information, were considered by the CSE when it reconvened on November 14, 2022 (Ex. 2-1-3, 5-10; Tr. dated 6/26/2023 p. 231; Tr. dated 8/9/2023 p. 63).

From the date of request until the CSE convened, a total of 59 calendar days had elapsed. I find that the District not only responded to Parents’ request for the reevaluation, but also that they did so expeditiously.

Sufficiency of the Reevaluation I further find that the District conducted a reevaluation comprised of a variety of assessments, conducted by a variety of different individuals, all of whom identified Student’s needs in various areas.

In general, evaluations must include: using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information” (20 U.S.C. § 1414[b][2][A]); using “technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors” (20 U.S.C. § 1414[b][2][C]); and assessing the child “in all areas of suspected disability,” including, where appropriate, social and emotional status (20 U.S.C. § 1414[b][3][B]; 34 CFR § 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]). An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR §300.304[c][6]; 8 NYCRR § 200.4[b][6][ix]). A reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability. See 8 NYCRR § 200.4(b)(4). Further, the reevaluation must be "sufficient to determine the student's individual needs, educational progress and achievement, the student’s ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." 8 NYCRR § 200.4(b)(5).

To determine Student’s functioning in a classroom in general, including behavioral challenges, on October 13, 2022, School Psychologist conducted a Classroom Observation (Ex. 4; Tr. dated 6/23/2023 p. 210; Tr. dated 6/26/2023 pp. 228, 229). The CSE also reviewed the FBA and BIP created on May 11, 2022 (Ex. 2-7; Ex. V-2; Ex. 6; Ex. 7; Tr. dated 6/26/2023 p. 238).

Further, multiple assessments were conducted to identify Student’s skill levels related to language. Between September 2022 and October 30, 2022, Special Education Teacher #2 administered approximately 23 sections of the ABLLS-R, which measures present levels of functional use of language for a “typical” child of two-and-one-half to five years old (Ex. 2-1; Tr. dated 6/26/2023 p. 232). In September 2022, an EFL Quick Assessment was conducted (Ex. 2-2), and on October 30, 2022, an assessment to explore Student’s use of an alternative speaking method was conducted (Ex. 2-2). In addition, on October 12, 2022, as part of the Psychoeducational Evaluation, School Psychologist conducted the K-SEALS assessment which measures early academic and language skills, including number, letter and word knowledge (Tr. dated 6/23/2023 p. 203; Tr. dated 6/26/2023 p. 228; Ex. 2-3; Ex. 5).

To determine Student’s OT needs, the CSE administered a SP (Ex. 2-2), and to determine their PT needs, the CSE administered the SFA (Ex. 2-2-3). Moreover, Parent #1 was an active participant in the reevaluation process and a contributor to the evaluative data. On October 17, 2022, DOE LCSW conducted a Social History Update with Parent #1 (Ex. 3; Tr. dated 6/26/2023 pp. 231, 249), and Parent #1 completed the Reinforcer Checklist and a Parent Questionnaire (Ex. 2-5, 6; Ex. 3; Tr. dated 6/26/2023 p. 231).

Finally, the CSE received input from Special Education Teacher #2, SLP #2, Occupational Therapist #2, Physical Therapist, Unit Coordinator, BCBA, School Psychologist and Parents (Ex. 2; Tr. dated 6/26/2023 p. 231; Tr. dated 8/9/2023 p. 63).

Although I find that the reevaluation was proper in all respects based upon the above-described information, I further note that the CSE relied upon the “prior year’s IEP” (2-5). It is not clear from the record which IEP was relied upon, but the May 11, 2022 IEP contained the results of SANDI Assessments conducted in Spring 2022 (IHO Ex. V-1), and incorporated the results from testing conducted in Fall 2021 that were reported in the March 9, 2022 IEP (IHO Ex. IV-1, 3). ^[28] The Assessments measured Student’s skills in Reading, Writing and Math (IHO Ex. V-1). Accordingly, I find that the CSE also relied on these assessments as part of the reevaluation.

Sufficiency of the PLAAFPs Statement and Identification of Student’s Needs

I find that the District relied upon sufficient evaluative data, drafted an accurate PLAAFPs Statement and identified Student’s needs.

The CSE must draft a proper statement of the student’s PLAAFPs, ensuring that the PLAAFP is tailored to the student, addresses how the student’s disability affects their involvement and progress in the general education curriculum, and is reasonably specific and understandable. See 8 NYCRR § 200.4(d)(2); 34 C.F.R. § 300.320(a)(1); 34 C.F.R. § 300.324(a). See also Letter to New, 211 IDELR 464 (OSEP 1987). Armed with all the information gathered from the reevaluation, the CSE generated a PLAAFPs Statement that meets this statutory requirement. The CSE identified Student’s academic achievement, functional performance and learning characteristics, including Students’ strengths and areas of need in activities of daily living (“ADLs”), reading, math, writing, adaptive behavior, and S/L (Ex. 2-3-6). For example, the CSE identified Student’s “reading” skills as: completing a task when a “known reinforcer” is present; selecting one of six pictures from an array; pointing to body parts and clothing; possessing certain labeling skills; and being able to fill in of words to songs and activities (Ex. 2-4). Student’s math skills include matching pictures to objects and completing certain puzzles (Ex. 2-4), and their writing skills include making a mark on a piece of paper and some tracing (Ex. 2-4).

The CSE explained that Student’s adaptive behavior includes requiring verbal cues to assist with transitioning, prompts to carry out activities, and redirection to stay on task (Ex. 2-4). In terms of learning style, the CSE determined that Student learns best with a “high rate of individualized learning opportunities, a consistent schedule of reinforcement and repetition” and that Student “needs materials presented in multiple facets . . . to acquire and retain skills” (Ex. 2-5). Further, Student is a visual learner who benefits from modeling and needs an “external motivator” to complete work (Ex. 2-5).

Socially, Student enjoys participating in group activities alongside peers, listening to music, dancing, and playing with Play Dough (Ex. 2-6, 7; Ex. 3-3; Ex. 5-1, 3). Student requires a BIP, “continuous redirection” visual supports and positive reinforcement (Ex. 2-7).

Identifying the impact of Student’s physical development on learning, the CSE relied upon Student’s ABLLS-R scores in body movement categories, as well as information provided by OT and PT providers (Ex. 2-7-10). The CSE considered Student’s fine motor, visual motor, graphomotor, sensory processing and ADL skills (Ex. 2-7-9). They also reviewed Student’s abilities to travel, transition, navigate stairs, participate in classroom routines, and play on the playground (Ex. 2-9-10)

The CSE identified a detailed list of Student’s management needs, many of which also had been described throughout the IEP (Ex. 2-2-5-11). These needs include: repetition; most-to-least prompting; explicit and direct instruction; visual and verbal cues (i.e., word cards, number cards, and number lines); verbal redirection/modeling; manipulatives; first/then and token boards; class behavior charts; sensory activities; a choice time reward system; positive reinforcement and praise; and testing accommodations (Ex. 2-11). Student also needs “a highly structured environment with direct instruction in a small group setting with additional educators,” related services and various supports, such as the BIP and behavior paraprofessional (Ex. 2-11).

Finally, the CSE described how Student’s disability affects their ability to access their education, explaining that Student requires an “individual education program because of [their] unique needs, [their] classification of Autism and deficits in the areas of communication and cognitive skills,” and that those deficits “affect [their] ability to process and retain information at levels comparable to that of [their] peers within the general education setting” (Ex. 2-11). The CSE explained that the BIP and 1:1 behavioral paraprofessional are needed for “implementation and support” (Ex. 2-11). Finally, they explained that Student “requires repetition in a small group setting and supervision throughout the day to utilize materials when working toward a task to improve conceptual understanding, fluency, and application of skills across home and school environments” (Ex. 2-11).

I understand that Parents disagree with the results of the revaluation because they do not believe the results accurately reflect Student’s then-current or current levels of functional performance (PHC Tr. dated 2/3/2023 pp. 10-11; Tr. dated 6/9/2023 pp. 160-161, 162, 163-164; Tr. dated 6/23/2023 pp. 197-198, 204-206; Tr. dated 6/26/2023 p. 264). However, given the extensive testing that was conducted, the similarity of the results of various testing, the input from professionals who work with Student regularly in school and the testimony presented, I cannot find that the reevaluation process somehow resulted in an inaccurate or incomplete picture of Student’s levels of academic achievement and functional performance in November 2022.

Further, although Parent #1 was “very concerned and worried that [my] decision . . . [would] be based only on the evaluation from the school” (Tr. dated 6/23/2023 p. 217), I find that the District did not rely on any one assessment, such as the K-SEALS or the ABLLS-R, but rather on an entire process. Additionally, I did consider Parents’ evidence and testimony and found nothing that conflicted with the District’s evidence. I also personally requested that the District provide me with three additional, complete IEPs from the period prior to November 2022 (IHO Exs. III, IV and V). To the extent that they are relevant, they confirm the breadth and depth of Student’s needs, and again, do not conflict with information obtained through the District’s reevaluation process.

Student’s Goals

I find that because the District relied upon sufficient evaluative data, it had an adequate baseline to develop appropriate goals, and that the goals it created met Student’s needs and would enable Student to make educational progress. I find that the CSE drafted goals that correspond to and/or are designed to address Student’s needs as delineated in the IEP.

A proper PLAAFPs Statement serves as a baseline upon which to draft measurable academic and functional annual goals. These goals must meet the student’s needs and enable the student to make progress. See 8 NYCRR § 200.4(d)(2)(iii); 34 C.F.R. § 300.320(a)(2). Annual goals must be objectively measurable and reasonably specific to allow for monitoring of progress during the school year. See 34 C.F.R. § 300.320(a)(2)(i). However, they do not need to be measured by any specific assessment, and although objectives and benchmarks may be developed for all students, they are only required for students taking alternative assessments. See 8 NYCRR § 200.4(d)(2)(vi); 34 C.F.R. § 300.320(a)(2)(ii). The IEP must address how a student’s progress will be measured toward meeting the goals and how that progress will be reported. See 8 NYCRR § 200.4(d)(2)(iii)(b); 34 C.F.R. § 300.320(a)(3). Goals that are vague and immeasurable may result in the loss of educational opportunity for a student and may infringe upon the parent’s opportunity to meaningfully participate in the IEP formulation process, thereby denying a student a FAPE. Finally, an IEP may provide a FAPE even if the CSE fails to draft goals to address every identified need. See J.B. v. New York City Dep’t of Educ., 2424 F. Supp. 3d 186, 199 (E.D.N.Y. 2017); P.K. v. New York City Dep’t of Educ (Region 4), 819 F. Supp. 2d 90, 109 (E.D.N.Y. 2011), aff’d, 526 Fed. App’x 135 (2d Cir. 2013).

At the outset, because I find that the IEP contains a proper PLAAFPs Statement, I find that there was an appropriate baseline upon which to draft measurable and annual goals. I further find that the goals themselves meet most of Student’s needs and are likely to enable Student to make progress. Additionally, the CSE properly included objectives and benchmarks because Student is alternatively assessed.

The CSE drafted approximately 14 goals for Student in the areas of general educational needs, S/L, OT and gross motor skills (PT) (Ex. 2-10, 13-23). These goals address needs identified in the IEP and specifically correspond to needs identified on the ABLLS-R assessment (Ex. 2-13-23). There is some overlap between the goals developed pursuant to the May 2022 IEP and the November 2022 IEP and many new or modified goals were developed. For example, because Student had mastered the goal of following one-step directions, the November 2022 does not include that as a goal (Ex. 2-5; compare IHO Ex. V-15-28 with Ex. 2-13-23). Other goals, such as sorting items, requesting items and developing functional vocabulary, were retained (Ex. 2-5; compare IHO Ex. V-15-28 with Ex. 2-13-23). Each goal is broken down into intermediate steps and benchmarks for measuring progress (Ex. 2-13-23). Each goal also includes how and when progress will be measured (Ex. 2-13-23).

Furthermore, as already noted, the District recommended multiple management needs (Ex. 2-10-11), and recommended a BIP and a paraprofessional to assist with IEP implementation and support (Ex. 2-11).

The CSE’s Recommended Program

I find that the District has meet its burden to prove that the program of special education and related services it recommended was appropriate.

As previously noted, Parents have not challenged any recommendation by the CSE other than the 6:1+1 classroom setting and the actual classroom placement (SC #4 Tr. dated 5/16/2023 pp. 108, 117-118; Tr. dated 6/23/2023 pp. 187, 189; Tr. dated 6/26/2023 pp. 264-265; Tr. dated 8/9/2023

p. 75). However, to the extent that the “program” encompasses all the special education and related services, I have considered the appropriateness of the entire program.

Upon gaining an updated understanding of Student’s strengths, needs and learning style and drafting goals to help Student develop and grow as they access their education, the CSE recommended that Student be placed in a special education classroom in a 6:1+1 setting for the core classes in a DOE specialized school (Ex. 2-24, 29-30; Tr. dated 6/26/2023 p. 237).^[29] The CSE considered placement in an 8:1+1 special class, but determined that Student’s various deficits required “a more structured learning environment” with specific supports and focuses to benefit Student (Ex. 2-31). Given Student’s needs, I find that the smaller classroom setting is warranted.

To assist Student with elopement concerns, which also affect Student’s ability to access their education, the CSE maintained the prior recommendation for a full time “Behavioral Support Paraprofessional” and the BIP (Ex. 2-11, 25; Ex. 2-11, 12, 30; Tr. dated 6/26/2023 p. 237). I find based upon the frequency, duration and level of Student’s elopement behavior (Ex. 2-7, 12; Ex. 6-5; Ex. 7-1, 4), as well as the behavioral concerns documented during the reevaluation (see e.g. Ex. 4; Ex. 5-1), that Student requires this support. Additionally, I find that Student’s behavior since creation of the BIP includes being out of their seat, yelling/screaming, running around the classroom, hitting, kicking, punching, spitting, pinching, pulling hair, attempting to leave the classroom and eating non-edibles (Ex. 9; Ex. 10), further substantiating the importance of paraprofessional services to Student.

I also find the CSE’s recommendations to address Student’s related services needs appropriate. The CSE maintained the related services recommendations of: individual OT, three times per week for 30 minutes and individual SLT three times per week for 30 minutes (Ex. 2-11, 24-25, 30; Tr. dated 6/26/2023 p. 237). Although no one explained why Student’s PT recommendations were modified,

I find that there was no resulting decrease in the frequency or duration of sessions, but rather that one session would be conducted in a group instead of individually (Ex. 2-24, 30; Tr. dated 6/26/2023 p. 237). These recommendations were supported by input from each provider as documented in the November 2022 IEP (Ex. 2-5-10).

I do find that the CSE did not list an AT device or service for Student (Ex. 2-25) but did check off the boxes indicating that Student required a “particular device or service to address their communication needs” and needed an AT device and/or service (Ex. 2-12). Student uses an iPad to communicate at home (Ex. 3-3). School Psychologist testified that although the IEP does not recommend adaptive or alternative communication, it prioritizes Student’s “preferred method of communication” (Tr. dated 8/9/2023 p. 52). This is supported by the BIP which lists requesting needs using the AAC device or preferred form of communication as an alternative skill being taught (Ex. 2-7, 12) (emphasis supplied). Additionally, Student’s preferred method of communication is vocal, as confirmed by the EFL Alternative Methods of Speaking Assessment and through SLP #2 (Ex. 2-2, 5). I find that the failure to include a particular device on the IEP does not rise to the level of denying Student a FAPE.

I further find that the CSE properly determined that Student requires alternative assessments and the specific testing accommodations contained on the November 2022 IEP (Ex. 2-11, 26-28, 30). Moreover, although regression was not specifically discussed, I concur that the severity and global nature of Student’s deficits necessitates all special education and related services on a 12-month basis (Ex. 2-25). ^[30]

Finally, to support Parents, the CSE recommended PCAT one time per month for 60 minutes (Ex. 2-11, 24-25, 30; Tr. dated 6/26/2023 p. 237).

Placement in a 6:1+1 Verbal Behavior Classroom Parents brought this DPC challenging the CSE’s decision to recommend that Student be placed in a 6:1+1 classroom (Ex. 1), and have maintained throughout the proceedings that Student “deserves to be in an 8:1+1 setting” (see e.g. SC #2 Tr. dated 3/1/2023 p. 54; SC #4 Tr. dated 5/16/2023 p. 105; Tr. dated 6/26/2023 p. 268). I find that the CSE’s recommendation was consistent with a FAPE. Public School is a District 75 School that is specifically tailored for students living with Autism, intellectual disabilities, emotional disabilities and other classifications or diagnoses (Tr. dated 6/23/2023 pp. 194, 195). Public School comprises kindergarten through 5th grade (Tr. dated 6/23/2023 pp. 195-196), and includes verbal behavior classrooms, alternately assessed classrooms and standardly assessed classrooms (Tr. dated 6/23/2023 pp. 194-195). Class sizes range from six students to 12 students (Tr. dated 6/23/2023 pp. 194-195).

Verbal behavior classrooms focus on basic language, communication and learning skills (Tr. dated 6/23/2023 pp. 196-197, 199; Tr. dated 6/26/2023 p. 249). Additionally, pragmatic skills are “explicitly” taught in a verbal behavior classroom (Tr. dated 6/26/2023 pp. 236-237). They use the principles of behavior analysis, meaning that they provide much opportunity for instruction and reinforcement (Tr. dated 6/23/2023 p. 196). All verbal behavior classrooms at this Public School are 6:1+1 classrooms (Tr. dated 6/23/2023 pp. 197, 199; Tr. dated 6/26/2023 p. 249).

The decision whether to place a student in a 6:1+1 classroom instead of an 8:1+1 classroom is determined by each student’s specific needs (Tr. dated 6/26/2023 p. 249). Most students in the 6:1+1 verbal behavior classrooms and those in the 8:1+1 classrooms are diagnosed with Autism (Tr. dated 6/23/2023 pp. 199-200), and the classes are similar in certain ways. For example, verbal skills can be taught in an 8:1+1 setting (Tr. dated 6/26/2023 p. 249). Further, in a 6:1+1 classroom, the school day generally consists of a morning meeting, and students are encouraged to consult their visual schedules so they can gain independence in self-direction around the classroom (Tr. dated 6/26/2023 p. 248). The students engage in independent work and group work until lunch (Tr. dated 6/26/2023 p. 248). All work is “immediately reinforced or [ ] corrected” (Tr. dated 6/26/2023 p. 248). The 8:1+1 classroom also relies on visual schedules and encouraging students to walk around themselves (Tr. dated 6/26/2023 pp. 248-249).

However, there are two main differences between the two settings. The first difference is the content (Tr. dated 6/26/2023 p. 248). “Generally, students in the 6:1+1 classrooms are working on prerequisite academic and communicative skills, while the students in the 8:1+1 classrooms have developed and demonstrated sufficient acquisition of those prerequisite skills and are working on more academic skills, like reading, writing and math” (Tr. dated 6/23/2023 p. 200; Tr. dated 6/26/2023

p. 253). Prerequisite skills refer to the skills a student acquires prior to engaging in reading, writing and math (Tr. dated 6/26/2023 pp. 232-233). These include: communicating and cooperating effectively; being able to repeat things physically and verbally; being able to label items and request items; demonstrating appropriate visual processes; and holding and using writing utensils appropriately (Tr. dated 6/26/2023 pp. 232-233). Students need to: know all the letters so they can start building sounds; write letters independently so they can start to write; and count so they can engage with math (Tr. dated 6/26/2023 p. 253). Most students in a 6:1+1 verbal behavior classroom “are generally working on communication skills,” including responding to language, expressing themselves and learning to communicate with others (Tr. dated 6/23/2023 p. 200). By contrast, the students in the 8:1+1 setting are working on “higher level skills, like intraverbal conversations, writing and reading, explicitly” (Tr. dated 6/26/2023 p. 249).

The second difference is the level of support the students need. Students in a 6:1+1 classroom “typically” need a “very high level of adult support and reinforcement,” including a high frequency of redirection and prompting (Tr. dated 6/23/2023 pp. 200-201; Tr. dated 6/26/2023 p. 248). In a 6:1+1 setting, the students engage in small groups of two to three students or work individually with teachers or classroom paraprofessionals (Tr. dated 6/26/2023 pp. 247-248). This smaller setting allows for more opportunity to assist students (Tr. dated 6/26/2023 p. 254).

The CSE determined that this was the appropriate classroom setting for Student because students in an 8:1+1 setting “have demonstrated[] the prerequisite skills necessary for reading, writing and math, so they can start to engage with academic tasks,” but that Student was still working on prerequisite skills which are addressed in a verbal behavior class (Tr. dated 6/26/2023 p. 238). Further, they determined that Student requires the higher level of engagement, including continuous redirection and prompting that the 6:1+1 setting provides (Tr. dated 6/26/2023 p. 254).

Based on the records before me, I concur with the CSE’s determination. Student has undergone a plethora of examinations and assessments since the beginning of 2022 (IHO Ex. II; IHO Ex. IV-1,2; IHO Ex. V-1, 2, 4-6; Ex. 2-1-10; Ex. 3; Ex. 4; Ex. 2; Ex. 6). Every one of these assessments confirms that Student does not possess the language skills, prerequisite academic skills or the behavioral skills to advance to a larger-sized classroom. For example, Student struggles with verbal communication skills (Ex. 2-1-7, 11). Student can identify just over half of the letters of the alphabet (Ex. 2-7), struggles to recall letters and letter formations (Ex. 2-7, 8), and tested in the “Lower Extreme” range in the Number Skills category of the K-SEALS (Ex. 2-3; Ex. 5-2, 3). Student requires hand-over-hand assistance paired with verbal cues and modeling to copy shapes and letters (Ex. 2-7-8). Further, Student requires continuous supervision and support, including redirection, prompting, modeling and behavioral support (Ex. 2-4, 5, 6, 7, 11).

Moreover, I asked School Psychologist pointed questions to better understand how the CSE made its determinations given Student’s strengths and needs and to determine the accuracy of Parents’ contention that Student was not placed in an 8:1+1 setting simply because a seat in such a classroom was unavailable (PHC Tr. dated 2/3/2023 pp. 11, 14-15; SC #2 Tr. dated 3/1/2023 pp. 54, 56; Tr. dated 6/26/2023 pp. 247-257, 264; Tr. dated 8/9/2023 pp. 67-70).

I find that School Psychologist answered all questions I posed calmly, rationally and truthfully. When School Psychologist did not know an answer they explained why, when an answer might not have been favorable to their position, they answered it, and they provided details where they could. For example, when I asked School Psychologist about the impact of Student’s behavior on the testing they personally conducted, School Psychologist admitted that Student’s results are likely an underestimation of their abilities because of their behavior (Tr. dated 6/26/2023 p. 255). When Parent asked School Psychologist about the impact of Parent #2’s diagnosis on Student, School Psychologist explained that they did not know Student prior to the 2022-2023 school year, but is aware that family circumstances, such as a parent’s diagnosis with [REDACTED], can impact a child’s mental health (Tr. dated 6/26/2023 pp. 239-241). When asked about Student’s performance on the quick assessment, specifically their ability to use words spontaneously, School Psychologist testified that they did not know if Student’s score in that area would suggest placement in a 6:1+1 or 8:1+1 classroom (Tr. dated 6/26/2023 p. 250). Regarding Student’s ability to trace (Ex. 2-4), they acknowledged that such is an academic skill and that Student could be placed in either classroom (Tr. dated 6/26/2023 p. 251).

School Psychologist provided more detailed answers based on Student’s performance on the ABLLSR and how those results supported a 6:1+1 classroom placement. For example, although Student did relatively well on matching and imitating, Student’s required level of prompting, redirection, refocusing and helping aligned with a 6:1+1 setting (Tr. dated 6/26/2023 p. 251). In terms of math skills, although Student could match, perform block designs, and solve certain puzzles, Student’s skills would not support placement in an 8:1+1 setting because students in that class would be working on counting and arithmetic (Tr. dated 6/26/2023 pp. 251-252). In terms of Student’s ability to fill in the blanks and identify animal sounds, again School Psychologist explained that although those are academic skills, they are more in line with a 6:1+1 setting because in an 8:1+1 setting, students are matching letters to sounds and starting to sound out words. Further, students in an 8:1+1 setting have more advanced labeling abilities (Tr. dated 6/26/2023 p. 252). Finally, Student’s ability to identify

15 out of 26 letters (Ex. 2-7) is more in line with a 6:1+1 classroom (Tr. dated 6/26/2023 p. 252). For the above reasons, I find the CSE’s decision to recommend placement in a 6:1+1 verbal behavior classroom proper. Parents’ Claims About the Particular Classroom Parents claim that Student was on a “higher” level than the other students in their class and that Student would regress by being with those students (Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 pp. 36, 60). Parents also claim that Student was not challenged and learned “nothing” in the classroom (SC #1 Tr. dated 2/13/2023 pp. 38-39; SC #2 Tr. dated 3/1/2023 p. 54; Tr. dated 6/26/2023 p. 265; Tr. dated 8/9/2023 pp. 36, 60; Ex. 3-3, 4). At the outset, my analysis and findings are generally limited to the information available to the District at the time they drafted the IEP and determined that a 6:1+1 setting was appropriate for Student. See generally R.E., 694 F.3d 186-188 (explaining that generally, the sufficiency of the offered program must be determined on the basis of the IEP) (Tr. dated 6/9/2023 pp. 163-164; Tr. dated 6/26/2023 pp. 259-261). Parent had communicated with School Psychologist numerous times about concerns that Student was regressing (Tr. dated 6/26/2023

p. 246). Those concerns were not discussed at the IEP meeting (Tr. dated 6/26/2023 pp. 245-246). New York State requires that “determinations regarding the size and composition of a special class shall be based on the similarity of the individual needs of the students according to levels of academic or educational achievement and learning characteristics, levels of social development, levels of physical development, and the management needs of the students in the classroom.” Application of the Board of Education, Appeal No. 22-092, p. 37 citing 8 NYCRR § 200.6(h)(2); 8 NYCRR 200.1(ww)(3)(i)(a-d). This type of grouping is known as functional grouping. See Application of the Board of Education, Appeal No. 22-092, p. 37.

School Psychologist provided a detailed explanation of why students are selected to be placed in a 6:1+1 verbal behavior classroom. Additionally, they testified that students in a 6:1+1 classroom can be on a lower pre-academic readiness level than Student because they each have different skills and weaknesses (Tr. dated 6/26/2023 pp. 255-256). However, because of the small class size, the teacher can work individually on each student’s particular goals (Tr. dated 6/26/2023 p. 256). If a student reaches certain IEP goals, the CSE can begin a reevaluation at any point (Tr. dated 6/26/2023 p. 257). Furthermore, peer modeling occurs in a 6:1+1 setting as students engage in group lessons, games and free play (Tr. dated 8/9/2023 pp. 67-68). Finally, students in a 6:1+1 setting are subject to a challenging curriculum based on their individual needs and educational level (Tr. dated 8/9/2023 pp. 69-70), and their learning program is specifically based on their needs and in relation to their goals (Tr. dated 8/9/2023 pp. 69-70).^[31] Therefore, I find that Student is functionally grouped with peers, that Student can be challenged in the 6:1+1 setting, and that Student’s progress will be monitored.

Parents’ Right to Meaningful Participation Construing their claims liberally, I find that Parents have alleged a deprivation of their right to meaningfully participate in the IEP process. For example, Parents have claimed that when Parent #1 met with the CSE to draft the 2022-2023 IEP, the conversation was “short, because Parents disagreed with the ‘6 level’” and that “there were no discussions” (Tr. dated 6/26/2023 p. 267). I find that the record is not consistent with these contentions.

In drafting the November 2022 IEP, the CSE relied on input from Parent at the meeting, and through the Social History Update, the Reinforcer Checklist and a Parent Questionnaire (Ex. 2-5, 6; Ex. 3; Tr. dated 6/26/2023 p. 231). Per Parent #1, when at home, Student requested desired actions and items using one-word utterances, body language, gestures and sounds (Ex. 2-5). Parents expressed concern regarding Student’s ability to request items and wanted Student to use more than one-word utterances (Ex. 2-6, 7, 31). In addition, Parent #1 specifically expressed that they wanted Student to focus, to be more aware and to use their words (Ex. 2-6, 31). During the meeting, there was an “extensive conversation” about developing Student’s requesting and labeling skills (Tr. dated 6/26/2023 p. 236). Further, the CSE Team discussed with Parents “that verbal behavior and skills like requesting items are directly taught in a 6:1+1 setting,” and that Student was working on “foundational skills in communication” in the 6:1+1 classroom (Ex. 2-6, 31; Tr. dated 6/26/2023 p. 236).

Parent # expressed further concerns regarding Student’s sensory dysregulation and decreased focus, and Student’s inability to write, draw and copy letters and shapes (Ex. 2-10, 31). To address these concerns, the CSE noted that Student benefitted from: sensory input and movement breaks; required maximal verbal cues, including to initiate or complete most tasks; repetition of instruction; demonstration; and hand-over-hand assistance (Ex. 2-8). Student also required sensory integration to increase focus and attention, use of visual boundary lines to increase pre-writing skills, a reward system and positive reinforcement (Ex. 2-8).

At the meeting, Parents expressed their concern regarding Student’s ability to play on the playground alone and asked for a paraprofessional to be there at all times (Ex. 2-10, 31). They also asked that Student’s toe-walking gait be included as a goal (Ex. 2-10, 31). Physical Therapist explained that PT goals are based on participation in school functional activities, such as the ability to transition, and that balance issues could be addressed if Student was observed falling or tripping (Ex. 2-10, 31). Parent #1 agreed to the recommended PT goals (Ex. 2-10, 31).

In sum, I find that the CSE was responsive to Parents’ concerns and provided Parents a meaningful opportunity to participate in the educational process.

Parents’ Claims About the CSE’s Failure to Consider Parent #2’s Diagnosis Parents acknowledge that Parent #2’s [REDACTED] diagnosis impacted Student (Tr. dated 6/23/2023 pp. 187, 188; Tr. dated 6/26/2023 pp. 263-264; Tr. dated pp. 8/9/2023 pp. 74-75). They claim that Public School should have taken into consideration Student’s family situation because “none of the other students had a parent with [REDACTED] fighting for their life” (Tr. dated 6/26/2023 pp. 265, 266). I find that the CSE did take this into consideration when issuing the most recent IEP. Further, crediting that the diagnosis affected Student in the way Parents have described, and that Parents saw positive changes during Summer 2022, I find that the [REDACTED] diagnosis is not the sole reason Student exhibits challenging behavior. Further, Parent #2’s remission cannot be the sole basis for changing Student’s placement. I find that Student’s main challenges were present prior to the diagnosis and that even if their behavioral challenges subsided when Parent #2 went into remission, their behavior and their language and prerequisite skills deficits documented at the time the CSE drafted the November 2022 IEP warrant placement in a 6:1+1 classroom.

First, I find that the CSE did consider Parent #2’s diagnosis. During the Social History Update, Parent #1 explained that Parent #2 had been diagnosed with [REDACTED] the year prior and was currently in remission (Ex. 3-2). The FBA Team also considered that there had been recent changes in the home due to Parent #2’s medical diagnosis, resulting in a temporary change in primary caretaker, alterations in routine and overall changes in the home (Ex. 6-3). These documents were considered at the November 2022 IEP meeting (Tr. dated 6/26/2023 p. 231; Ex. 2-7).

Second, I find that Student’s behavioral challenges predated Parent #2’s diagnosis, and have continued since. For example, in drafting the May 7, 2019 IEP, the CPSE recommended that a 1:1 paraprofessional be assigned to Student for behavior management to address Student’s impulsive behavior (IHO Ex. I-3, 5) As of December 20, 2019, Student would engage in some “unsafe behaviors” when not provided with a “high level of sensory input” (IHO Ex. I-7). Currently, Student engages in various behaviors necessitating a BIP and a full time paraprofessional, such as yelling/screaming, running around the classroom, other aggressive behavior and eating non-edibles (Ex. 9; Ex. 10).

Third, I have found that current testing supports the CSE’s recommendations (see supra), and that Student’s academic achievements consistently have been below age-expected levels. Finding of a FAPE In sum, I find that the IEP was developed in consideration of the student’s: “(1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs.” Brock, 2015 WL 1516602, 2015 U.S. Dist. LEXIS 44254, 3, quoting M.H., 685 F.3d at 224 (further citation omitted). I also find that this IEP, including the recommendation for a 6:1+1 classroom, was reasonably calculated to enable Student to receive meaningful benefit (see Rowley, 458 U.S. at 206-07) and was reasonably likely to produce progress. See Cerra, 427 F.3d at 195 quoting Walczak, 142 F.3d at 130 (quotations omitted).

Consideration of The 2023 Neuropsychological Evaluation Although I have determined that the District did provide Student a FAPE for the 2022-2023 school year, each Party asked me to consider the results of the 2023 Neuropsychological Evaluation. Parent #2 asked that I consider it as a current representation of Student’s functioning (Tr. dated 6/26/2023 p. 260). District Representative asked that I consider it for the purpose of “further substantiat[ing]” that the District provided Student a FAPE (Tr. dated 7/14/2023 p. 11). Specifically, the District maintains that the descriptions in the 2023 Neuropsychological Evaluation mirror the descriptions in the November 2022 IEP, and that the Evaluation confirms that Student is not demonstrating prerequisite academic skills (Tr. dated 8/9/2023 pp. 73-74). I find that the 2023 Neuropsychological Evaluation supports the findings the District made in creating Student’s November 2022 IEP.

On June 14, 2023, an independent licensed psychologist (“Independent Psychologist”)^[32] conducted a neuropsychological examination of Student (IHO Ex. II; Ex. 13). The examination consisted of: information regarding Student’s developmental and school history; a records review; observations and interactions with Student; and numerous assessments (IHO Ex. II). Independent Psychologist conducted testing in areas of cognitive ability, academic skills, behavioral and psychological functions, Autism symptomatology and adaptive skills (IHO Ex. II).^[33] Independent Psychologist included the results of that examination along with analysis and certain recommendations in the 2023 Neuropsychological Report (IHO Ex. II). ^[34]

Independent Psychologist determined that Student’s overall intellectual functioning is “Extremely Low” (IHO Ex. II-5). Student presents with strengths in non-verbal skills and receptive language abilities, can identify numbers, letters and colors and can communicate basic needs using simple words and gestures (IHO Ex. II-5). However, Independent Psychologist opined that Student demonstrates “significant” deficits including expressive language skills that are “extremely limited” for their age, and that Student’s inability to communicate causes challenging or maladaptive behaviors at times (IHO Ex. II-6). Ultimately, Independent Psychologist determined that Student meets the criteria for ASD, Level 3, with accompanying intellectual impairment and Intellectual developmental disorder, severe (IHO Ex. II-6).

During testing, Student would grab test items from Independent Psychologist and occasionally shout when they were removed or Student was denied access to them (IHO Ex. II-2). Student would also walk around the room and repetitively open and close the door and attempt to leave (IHO Ex. II-2). One time, Student hit Independent Psychologist’s arm and attempted to pinch the doctor (IHO Ex. II-3). Student had “significant difficulty” attending, and certain tasks and subtests needed to be discontinued due to behavioral challenges (IHO Ex. II-3).

Student’s full-scale IQ was assessed in the “Extremely Low” range, with that range reflected in each domain tested (IHO Ex. II-3, 7-8). Per a school readiness assessment, Student scored 100% on the Letters subtest, but overall tested in the “Very Delayed” range (IHO Ex. II-3, 4, 8-9). Student’s academic skills were tested through another assessment, which confirmed a personal strength in identifying letters of the alphabet (IHO Ex. II-4, 8). However, overall, Student skills were assessed in the “Extremely Low” range, and more specifically, Student could not identify sight words or sounds, write their name, or exhibit mathematical computation skills (IHO Ex. II-4, 8).

Independent Psychologist requested that Parent #1 and Student’s Current Teacher complete a Behavior Assessment Scale for Children- Third Edition (“BASC-3”) (IHO Ex. II-4, 9-10). Per Parent, Student presents with no externalizing or internalizing problem behaviors (IHO Ex. II-4, 9). However, Student exhibits “clinically significant challenges” in functional communication and “AtRisk range difficulties” in the areas of social skills, leadership, and overall adaptive functioning (IHO Ex. II-4, 9). By contrast, Student’s externalizing behavior was assessed in a “Clinically Significant” range based on Current Teacher’s report, including hyperactivity, aggression and conduct problems (IHO Ex. II-4, 5, 9-10). Independent Psychologist further assessed Student’s symptoms in the “Clinically Significant” range based on Current Teacher’s report in anxiety, depression, attention problems, atypicality, and withdrawal, and all were related to behavioral dysregulation (IHO Ex. II-4-5, 9-10).

When testing for Autism symptomology, Independent Psychologist determined that, overall, Student’s scores were “well above the cutoff typically seen in individuals with [ASD]” (IHO Ex. II-5). Specifically related to Student’s language and communication skills, Independent Psychologist determined that Student exhibited some areas of strength as well as several neurodivergent social responses (IHO Ex. II-5). Independent Psychologist assessed Student’s vocal communication skills as “extremely limited” for their age, basing this on Student’s: use of pointing and gesturing to make requests; repetition of words; and engagement in some directed vocalizations and several undirected vocalizations that were often “unusual or abnormal to context” (IHO Ex. II-5).

Measuring Student’s adaptive skills, Independent Psychologist determined that Student presents with the “most significant challenges in the area of communication” with abilities assessed in a “Low” range and “significantly below” age expectations, particularly in expressive communication (IHO Ex. II-5, 10-11). Independent Psychologist recommended that Student receive reasonable accommodation “in the least restrictive environment in a setting that will provide adequate behavioral support” and “requires a small class setting with the support of 1:1 staffing that can implement [Student’s] behavioral plan with fidelity” (IHO Ex. II-6). Regarding communication, Independent Psychologist recommended the exploration of adaptive or alternative communication methods to supplement verbal speech (IHO Ex. II-6). Independent Psychologist made other recommendations, including that Parents may wish to explore at-home Applied Behavior Analysis (“ABA”) to “further support [Student’s] communication and overall skills development,” as well as to seek consultation from a Child and Adolescent Psychiatrist if Student’s behavioral regulation worsens (IHO Ex. II-6-7)

School Psychologist reviewed the 2023 Neuropsychological Report, and determined that the findings were consistent with the CSE’s determination that the current 6:1+1 recommendation is the appropriate setting for Student (Tr. dated 8/9/2023 pp. 42, 54).^[35] Moreover, based upon the assessment conducted in October 2022 and the 2023 Neuropsychological Evaluation, School Psychologist maintained that Student’s performance is consistent with a student in a 6:1+1 classroom (Tr. dated 8/9/2023 p. 61). For example, Student’s behavior during the testing was similar to the behavior Student exhibited when School Psychologist assessed Student (Tr. dated 8/9/2023 pp. 43-44). The 2023 Neuropsychological Evaluation confirmed that Student possesses limited cognitive, prerequisite, communication, and coping skills across multiple settings, and is still developing prerequisite skills for academic performance (Tr. dated 8/9/2023 pp. 47-48). Additionally, the current IEP addresses the Independent Psychologist’s recommendations (Tr. dated 8/9/2023 pp. 51-52). For example, the CSE appointed a 1:1 paraprofessional to Student for behavioral support, and the most recent BIP targets elopement (Tr. dated 8/9/2023 pp. 51-52). Further, although the IEP does not recommend adaptive or alternative communication, it prioritizes Student’s “preferred method of communication” (Tr. dated 8/9/2023 p. 52). Finally, Student attends a verbal behavior classroom (Tr. dated 8/9/2023 pp. 52-54). For the above reasons, I find that the results from the 2023 Neuropsychological Evaluation support the CSE’s decision to recommend a 6:1+1 classroom setting for Student.

Consideration of Prior Evaluations Parents also have requested that I review prior evaluations, maintaining that they were concerned that I would only look at the current ones (Tr. dated 6/23/2023 p. 217; Tr. dated 8/9/2023 pp. 61-62).

First, as already explained, I am bound to review the information that was available to the CSE at the time they drafted each IEP. See generally R.E., 694 F.3d 186-188 (explaining that generally, the sufficiency of the offered program must be determined on the basis of the IEP).

Second, although I have reviewed the prior IEPs, without testimony about the evaluations used to draft them, I am left to guess what relevance, if any, they would pose to the issues at hand. School Psychologist specifically testified that they were not a part of the decision-making in prior years when Student was in an 8:1+1 setting (Tr. dated 8/9/2023 p. 61).^[36] Nonetheless, as explained, Student’s academic performance has been measured repeatedly over the past 2 ½ years (See IHO Ex. I; III; IHO Ex. IV; IHO Ex. V). A student’s circumstances and special education needs may change from year to year, and the fact that the CSE recommended an 8:1+1 setting previously does not mean that they must recommend one now. In fact, and as already explained, the evidence supports the DOE’s modification of Student’s IEP to a more restrictive placement.

CONCLUSION

Parents have contended with a host of issues and have advocated for Student throughout Student’s educational journey. This decision, however, must be based only upon what I deem to be appropriate for Student under the IDEA. On this record, and upon my review of the law, I have determined that the CSE provided Student a FAPE for the 2022-2023 school year, in that Student required the recommended program with placement in a 6:1+1 classroom setting. Parents’ request, therefore, for a modification of the IEP to a less restrictive 8:1+1 classroom setting is hereby denied.

October 14, 2023 (signed electronically)

Ginger James Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

ADMITTED AS IHO EXHIBITS

DOE EXHIBITS

1. Impartial Hearing Request 11/15/2022 ^[37] 3 pages DOE

2. Individualized Education Program 11/29/2022 32 pages DOE

3. Social History Evaluation 10/2022 4 pages DOE

4. Classroom Observation 11/11/2022 2 pages DOE

5. Psychoeducational Evaluation 10/12/2022 3 pages DOE

6. Functional Behavioral Assessment 05/11/2022 7 pages DOE

7. Behavior Intervention Plan 05/11/2022 6 pages ^[38] DOE

8. Behavior Intervention Plan Review Meeting Progress Monitoring Tool for Behavior 09/26/2022- Undated 2 pages DOE

9. Intervention Plans Progress Monitoring Tool for Behavioral 02/27/2023- 09/30/2022 9 pages DOE

10. Intervention Plans 03/03/2023 11 pages DOE

11. Request for Re-Evaluation 09/16/2022 1 page DOE

12. Request for Re-Evaluation 02/07/2023 1 page DOE

IHO EXHIBITS

I. Parent’s Email dated 5/20/23 with Disclosures: • Letter from [REDACTED] Hospital, 02/07/2023, 1 page • Summary Individualized Education Program (“IEP”) Meeting, 05/07/2019, 2 • Committee on Preschool Education (“CPSE”) Meeting Documentation Tracking Form, 03/08/2019, 39 1 page • [REDACTED] Pre School Acceptance Letter, 05/07/2019, 1 page • [REDACTED] Preschool Quarterly Progress Report, 12/20/2019, 2 pages • Summary Individualized Education Program (“IEP”) meeting, 04/20/2021, 2 Various 10 pages

II. Neuropsychological Evaluation 06/14/2023 12 pages

III. Individualized Education Program (“IEP”) 04/06/2021 35 pages

IV. Individualized Education Program (“IEP”) 03/09/2022 36 pages

V. Individualized Education Program (“IEP”) 05/11/2022 40 pages

VI. Emails Regarding Resources for Parents 02/03/2023 39 2 pages

VII. Although the IEP Conference and IEP Effective dates reflect 2016, this appears to be an error. List of DOE Resources for Parent Email Regarding OATH- Special Education Undated 3 pages

VIII. Hearings Division Pro Se Parent Packet OATH- Special Education Hearings Division 03/01/2023 2 pages

IX. Pro Se Parent Packet Interim Order on Undated 28 pages

X. Independent Educational Evaluation Various between Emails Regarding Rescheduling 05/30/2023 and 03/22/2023 13 pages

XI. June Hearing Dates Various between Emails Regarding 2023 Neuropsychological 06/23/2023 and 06/06/2023 15 pages

XII. Report and July Hearing Dates Various Emails Regarding Witness Availability, the between 2023 Neuropsychological Report and 06/23/2023 and 07/11/2023 12 pages

XIII. July Hearing Dates 07/11/2023 9 pages

Footnotes

[2] Given that Parent #1 filed this matter pro se, I have deemed that Parent #1 also filed this matter pursuant to New York State Education Law and Part 200.5 of the Regulations of the Commissioner of New York State.

[3] Although Parent #1 filed the DPC, Parent #2 also appeared in this matter. I have referred to them, collectively, as “Parents” where appropriate.

[4] Between appearances in this matter, OATH engaged transcription services from a different provider. Accordingly, the full transcript is not consecutively paginated. References to the transcript from the Pre- Hearing Conference conducted on February 3, 2023 are denoted “PHC Tr. dated 2/3/2023 p.” References to the transcript from the Status Conferences conducted on February 13, 2023, March 1, 2023, April 18, 2023, May 16, 2023, and May 30, 2023 are denoted “SC #1 Tr. dated 2/13/2023 p.,” “SC #2 Tr. dated 3/1/2023 p.,” “SC #3 Tr. dated 4/18/2023 p.,” “SC #4 Tr. dated 5/16/2023 p.,” and SC #5 Tr. dated 5/30/2023 p.,” respectively. References to the transcript from the Due Process Hearing conducted on June 9, 2023, June 23, 2023, June 26, 2023, July 14, 2023 and August 9, 2023 are denoted “Tr. dated 6/9/2023 p.,” “Tr. dated 6/23/2023 p.,” “Tr. dated 6/26/2023 p.,” “Tr. dated 7/14/2023 p.,” and “Tr. dated 8/9/2023 p.,” respectively.

[5] Settlement conferences are conducted by an OATH Settlement Officer or OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded.

[6] Initially, Parent #1 wanted Student to remain in their current school (PHC Tr. dated 2/3/2023 pp. 13-14; SC #2 Tr. dated 3/1/2023 pp. 53-54, 55-56, 66). I explained that I could not order placement in any particular school (SC #2 Tr. dated 3/1/2023 pp. 56-57, 66).

[7] Parent #1 was joined by an interpreter for this appearance and for each subsequent appearance.

[8] The DPH had been scheduled for June 9, 2023 only. However, on June 5, 2023, by email, District Representative explained that they had a scheduling conflict requiring them to leave the proceeding earlier than the scheduled end time (IHO Ex. XI-12-13). I retained the June 9, 2023 date for preliminary matters, 6/9/2023 pp. 172-173). District Representative presented their opening statement (Tr. dated 6/9/2023 pp. 174-176). Parent #1 reserved their opening statement for June 23, 2023 (Tr. dated 6/9/2023 p. 176).

[9] On June 29, 2023, by email, District Representative explained that they had a scheduling conflict for the July 12, 2023 appearance (IHO Ex. XII-7). I rescheduled the hearing for July 14, 2023 (Ex. XII-4-7).

[10] On July 11, 2023, District Representative relayed, via email, that School Psychologist required emergency surgery and would be unavailable until August (Tr. dated 7/14/2023 p. 5; IHO Ex. XIII-1).

[11] I am mindful that Parents expressed frustration while listening to testimony regarding Student’s academic and functional performance levels, including testimony regarding evaluations with which they disagreed (Tr. dated 6/23/2023 pp. 204-206; Tr. dated 8/9/2023 p. 22). My recitation of my factual findings and later analysis is not meant to further upset Parents, but is necessary to render this decision.

[12] Although the meeting date was March 8, 2019, the IEP had been revised on May 7, 2019 (IHO Ex. I-3, 5).

[13] I did not request the IEP that would have been in effect at the commencement of the 2020-2021 school year, and no information was provided about the 2020-2021 school year.

[14] It is unclear whether the test was administered in the Winter of 2021 or during the winter after January 2022.

[15] Except as otherwise noted, all the information contained in the March 2022 and May 2022 IEPs remained the same (compare IHO Ex. IV with IHO Ex. V). The main differences between the two IEPs were the inclusion of the results of additional testing conducted between the March 2022 and the May 2022 IEPs, updated Parent concerns, and the other options considered by the CSE (compare IHO Ex. IV-1-11, 35 with IHO Ex. V 1-13, 38-39). The May 2022 IEP also includes revised management needs, goals, and recommendations (compare IHO Ex. IV-10-28, 33-34 with IHO Ex. V-12-32, 37).

[19] The results of other assessments are contained in the discussion below about the IEP that was generated in November 2022.

[20] It is not clear to which IEP this refers.

[21] The IEP does not reflect whether assessments were conducted in Sections I, J and O (Ex. 2-1).

[22] Although the Social History Update indicates that information related to grades/marks and teacher’s feedback to the parent are contained in a Teacher Report (Ex. 3-3), such report was not provided. It is not clear if the information in that report is the same information provided in the November 2022 IEP.

[23] At the DPH, Parent #1 testified that, at home, Student requests items by name and can understand and follow directions (Tr. dated 6/26/2023 p. 267). Further, per Parent #1, at the time of the CSE meeting, Student was using a speech generating device, but did not use it often because they would try to speak before using it (Tr. dated 6/26/2023 pp. 267-268).

[24] The IEP does not reflect why the service changed from two sessions of individual PT to one individual and one group session (Ex. 2-10), and School Psychologist believed that the related services mandates had remained the same (Tr. dated 6/26/2023 pp. 235, 247).

[28] The March 9, 2022 IEP also included the results of SANDI testing conducted in Winter 2022 (IHO Ex. IV-1, 3).

[29] A full discussion of the appropriateness of the verbal behavior classroom, specifically, follows immediately below.

[30] According to State regulation, the purpose of 12-month services is to prevent “substantial regression." 8 NYCRR § 200.6(k)(1); see also 8 NYCRR § 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 NYCRR § 200.1(aaa). My use of the word here is in contrast to Parents’ use of the word more colloquially (see e.g. Tr. dated 6/26/2023 pp. 246, 265; Tr. dated 8/9/2023 p. 36; Ex. 3-3, 4; IHO Ex. III-3, 33).

[31] School Psychologist could not answer specific questions about what Student learned in the 6:1+1 classroom (Tr. dated 8/9/2023 p. 60).

[32] Independent Psychologist is also a Licensed Behavior Analyst, a BCBA and a Nationally Registered Health Service Psychologist (Ex. 13-7).

[33] In response to Parent #2’s concerns about how the testing was conducted, School Psychologist explained that the assessments administered during the 2023 Neuropsychological Evaluation were not based upon Student’s classroom placement or level, but rather are standardized assessments, meaning that they are delivered to every individual taking the assessment in the same way (Tr. dated 8/9/2023 pp. 55-59). Per School Psychologist, the student’s age suggests to the evaluator where to begin asking questions (Tr. dated 8/9/2023 p. 58). If the student is able to answer questions, the evaluator continues, but if the student cannot answer questions, the evaluator may ask questions asked of younger students (Tr. dated 8/9/2023 pp. 58, 59-60).

[34] A complete list of the tests conducted appears on pages 1-2 of IHO Exhibit II, with the specific results of each test and subtest documented on pages 7-11.

[35] The 2023 Neuropsychological Report will be considered in connection with the next IEP meeting (Tr. dated 6/26/2023 p. 246; Tr. dated 8/9/2023 p. 54).

[36] Parent #2 specifically asked why School Psychologist only looked at the newer evaluations and not ones from prior years (Tr. dated 8/9/2023 pp. 61-62).

[37] The DPC is dated “11/15/2022” but was filed on December 15, 2022 (see Tr. dated 6/9/2023 pp. 158- 159).

[38] Page 6 is missing from the Behavior Intervention Plan, resulting in the document consisting of 6 pages, not 7 pages (see Tr. dated 6/9/2023 p. 158).