New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 595654 - NYC: 245377

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 245377

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

Date of Birth: [Redacted]

District: [Redacted]

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

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

Date of Complaint: January 27, 2023

Hearing Dates: June 23, 2023

July 10, 2023

Actual Record Close Date: July 25, 2023

Decision Date: August 8, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 23, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 10, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 27, 2023, regarding the 2022/23 school year (P-Ex. A) 1. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide an appropriate program and placement for the 2022/23 school year (P-Ex. A). The Parent requested tuition reimbursement / direct payment for their unilateral placement of the Student at the Private School for the 12-month 2022/23 school year and transportation (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on February 6, 2023. A prehearing conference was held on March ^[1], 2023, to discuss the issues in the case. The District did not appear. At the April 2023 status conference the District appeared and indicated that the matter was under investigation. In June 2023, the matter was still under investigation and the matter was scheduled for hearing (See, Transcripts). ^[2]

The hearing began on June 23, 2023, however the District did not present a case to defend the allegations. The matter was continued on July 10, 2023 for the Parent’s case. The Parent presented exhibits^[3] and two witnesses by affidavit. The District did not cross examine the affidavit witnesses. The record closed on July 25, 2023. There were four extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student was an [Redacted] year old, [Redacted] grade student who attended the Private School during the 2022/23 school year (P-Ex. R). The Student is classified as a student with Autism (P-Ex. A). The Student was described as having severe language challenges, difficulty interacting with peers, difficulty asking for help, and she has a tendency to shut down and stop working when she feels confused or overwhelmed (P-Ex. R-2). The Student is also very distractible and has a hard time staying focused, even on preferred activities (P-Ex. R-2).

The Student was first evaluated for special education through Early Intervention, but was not recommended for any support (P-Ex. R-2). The Student was later evaluated for special education services by the Committee on Preschool Special Education (“CPSE”) in January of 2015, and recommended for a 12:1:2 center based program (P-Ex. R-2-3). For Kindergarten, the District’s CSE recommended a 12:1:1 public school program with speech language services twice weekly (P-Ex. R-3). That same school year, the CSE recommended the addition of a 1:1 paraprofessional and increased her speech to three times weekly (P-Ex. R-3). According to the Parent, the Student continued to struggle (P-Ex. R-3). In first grade, OT was added to the Student’s program and again the Student struggled and made minimal progress (P-Ex. R-3). Based on the Student’s continued struggles and same recommendations from the District, the Parent unilaterally placed the Student at the Private School for the 2019/20 school year, where she remained through the 2022/23 school year (P-Ex. R-4).

The District’s CSE developed an IEP for the Student on November 1, 2021, and recommended a 12:1:1 program, with a one to one paraprofessional and Adaptive Physical Education for three periods per week, group Counseling once per week; group Occupational Therapy (“OT”) twice per week; Speech and Language Therapy (“SLT”) three times per week, twice in a group and once individually; and Parent Counseling and Training once per month (P-Ex. R-2). At the meeting, Private School staff had shared that the Student was steadily progressing but that she continued to need significant levels of adult support due to her low arousal levels, her distractibility, and her tendency to zone out (P-Ex. R-6). The Parent disagreed with the CSE’s recommendations (P-Ex. R-2). The Parent received a placement offer and attempted to reach the placement by telephone on several occasions, to no avail (P-Ex. R-7).

On June 20, 2022, the Parent notified the District in a ten day notice, of her disagreement with the IEP and placement (P-Ex. B; R-7). The District never responded (P-Ex. R-7). The Student continued her placement at the Private School for the 12-month 2022/23 school year (P-Ex. R). The District’s CSE then developed an IEP for the Student on October 26, 2022, recommending the same program from November 2021, adding Physical Therapy (“PT”) twice per week (P-Ex. R-2). The Parent raised concerns about the Student’s clumsiness and her tendency to trip and fall and her need for orthotics, which had been prescribed in the past, however the District did not recommend any orthotics in the IEP (P-Ex. R-8). The CSE discussed whether she continued to need a 1:1 paraprofessional, and the CSE agreed that although she benefited from daily 1:1 teacher support and small group teacher support, she did not need her own full time paraprofessional, which the Parent felt inhibited her ability to advocate for herself (P-Ex. R-8). The Parent raised concerns about the Student’s need for social support due to her difficulty engaging with peers and her reluctance to request assistance (P-Ex. R-8). The Parent again disagreed with the recommendations (P-Ex. R-2). The Parent was informed that the 12:1:1 program was the only program the District was prepared to offer and was advised of her rights (P-Ex. R-8). The Parent never received a placement offer after that meeting (P-Ex. R-9).

In November 2022, the Student had a neuropsychological evaluation that determined that the Student’s intellectual functioning varied from Low to Extremely Low; her academic functioning ranged from Low Average to Extremely Low; her adaptive skills were low in all domains and she demonstrated difficulty understanding spoken language (P-Ex. R-9). The Student was diagnosed with a Language Disorder; Developmental Coordination Disorder; Mixed Disorder of Scholastic Skills; and a Mild Intellectual Disability secondary to her [REDACTED] (P-Ex. R-9). The report noted that a “Multiple Disabilities” classification would better suit the Student due to her presentation, and recommended a highly structured, specialized program offering frequent 1:1 support, integrated related services and access to vocational training (P-Ex. R-9). The evaluation was shared with the District and the Parent requested another meeting (P-Ex. R-9). The District has not reached out to the Parent (P-Ex. R-9).

The Parent signed a contract with the Private School for the 2022/23 school year and is obligated to pay the tuition however, due to her limited income, she was not able to make any payments, and the entire balance is still outstanding (P-Ex. C; F; P; R-9).

CONCLUSIONS OF LAW

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

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

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

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District did not present a case or defend the allegations regarding the 2022/23 school year and therefore failed to meet their burden. Based on the undisputed facts alleged by the Parent in the affidavit testimony, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see also, M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting, Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents’ unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

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

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

“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” (Gagliardo, 489 F.3d at 112, quoting, Frank G., 459 F.3d at 364-65). Finding that the District did not provide FAPE to the student during the 2022/23 school year, the burden now shifts to the Parent to prove the appropriateness of the Private School. After reviewing the testimony and evidence provided, I find that they have met that burden. The Parent’s burden is to demonstrate that the Private School provided educational instruction specially designed to meet the unique needs of the Student, which is supported by such services as are necessary to permit the child to benefit from instruction.

The Assistant Head of School for the Middle School at the Private School testified by affidavit regarding the school and the Student (P-Ex. Q). The Private School is a non profit, independent school for students with disabilities from kindergarten through age twenty-one (P-Ex. I; J; Q). The Private School is accredited by the New York State Association of Independent Schools (P-Ex. Q). The Assistant Head of School coordinates the day-to-day operations of the Middle School, leads weekly Middle School team meetings, and supervises paraprofessionals and special education teachers (P-Ex. Q-2).

The Private School is a school for children with developmental and cognitive disabilities (P-Ex. Q-2). The Private School fosters the development of academic, adaptive life, daily living, and social/emotional skills (P-Ex. Q-2). The middle school serves 6th-8th grade children with mild to moderate cognitive or developmental disabilities that severely impact their acquisition of skills in academic and related service domains (P-Ex. Q-2). The program also serves students with language-based learning disabilities significantly impacting the acquisition of academic and social skills (P-Ex. Q-2). The curriculum is closely aligned with the New York State and Common Core Learning Standards, with varying levels of support and modifications to ensure quality individualized learning for each student (P-Ex. Q-2).

The objectives of the Private School program are to foster our students' social, emotional, academic, and language development; to develop students’ self-confidence so that they can use their inherent abilities to make appropriate decisions; to develop students’ problem solving skills in order to promote independence in school and the community; to develop students’ daily living and self-monitoring skills so that they can engage in a healthy lifestyle; to foster acceptance of children with special needs within the larger community; and, to develop parent partnerships to establish and achieve student goals (P-Ex. Q-2). The program focuses on developing competencies in each of the following areas: academic skills, critical thinking, problem solving, social skills, emotional health, physical education and movement, the arts and technology (P-Ex. Q-3). Each classroom is staffed with a head teacher, and at least two classroom paraprofessional (P-Ex. Q-3). In the Middle School, the Humanities classes have assistant teachers and clinicians provide scheduled activities within classrooms to bridge the clinical and academic goals while supporting the general classroom activities (P-Ex. Q-3). All middle school teachers and related service providers participate in a weekly meeting where they engage in professional development and discuss student cases (P-Ex. Q-3). Staff participate in a weekly meeting to address individual students needs and maintain cross curricular planning (P-Ex. Q-3). During the 2022/23 school year, there were approximately 307 students at the Private School, ranging in age from 5 to 21-years-old (P-Ex. Q-3). Approximately 60 students were in the Middle School, aged 11 through 14 (P-Ex. Q-3). Middle school students were grouped into five cohorts, with a maximum of twelve students, joined by one head teacher, an assistant teacher and three paraprofessionals (P-Ex. Q-3). The Private School’s program focused on the student’s current functioning levels and provided the curriculum the teachers needed in order to address functioning levels and were tailored to meet the student’s individual needs (P-Ex. Q-4). Teachers are typically certified by New York State in special education and/or have, or are in the process of completing a master’s degree (P-Ex. Q-4). Assistant teachers have a bachelor’s degree, and many are in the process of obtaining master’s degrees (P-Ex. Q-4). Paraprofessionals are required to have a high school diploma and receive professional development and training (P-Ex. Q-4). The Private School offers speech therapy, occupational therapy, physical therapy, and counseling; and all related service providers are licensed by New York State (P-Ex. Q-4; Q-6). The school’s curriculum also includes art therapy and music therapy (P-Ex. Q-4). The Private School offers and provides a significant amount of professional development to its staff and faculty, including a two-week summer training program that includes an orientation for new faculty and staff, training in curriculum design, and behavior management (P-Ex. Q-4). Throughout the year, the school convenes weekly planning sessions with classroom teams, as well as biweekly planning sessions with departmental teams, providing ongoing opportunities for professional development (P-Ex. Q-4). Homeroom cohorts have 12 students that are grouped by age, academic functioning levels, social skills, and adaptive skills, and they make sure that the social/ emotional and behavioral needs of the group are in line with each other (P-Ex. Q-5). A student’s program is modified based on their current functioning level, which is based on standardized assessments in reading and math, work samples, and observations and then different curriculum materials are used to develop the unit plans, lesson plans, activities, and assessments for each unit (P-Ex. Q-5; Q-6). Homeroom is staffed by a counselor, a related service provider, and a teacher who support executive functioning, prepare for the day, discuss any changes to the schedule that might be unusual, and also work with very small targeted social skill groups on language skills, peer communication, identifying appropriate peers, making plans for after school or the weekend, and respond to the individual social needs of the students in their cohort (P-Ex. Q-5). Teachers and clinicians also use the assessments to establish baseline data, and design initial goals for each student, which are reported twice annually in progress reports (P-Ex. Q-6). Progress is assessed formally and informally throughout the school year (P-Ex. Q-6).

An adaptive skills class meets once a week and addresses a student's need for life skills and adaptive skills, taught by an occupational therapist, a speech therapist, and/or a counselor through an integrated model (P-Ex. Q-5). Occupational therapy is often provided in a sensory gym which contains fitness equipment including a climbing/rock wall, equipment for providing deep pressure and sensory input (weighted blankets), and other toys and games used to develop a students’ fine motor and visual coordination (P-Ex. Q-6). Speech and language therapy is provided individually, in small groups (two to four students), or by pushing into the classrooms to provide language support while working on lessons (P-Ex. Q-6).

The Student attended the Private School for the 2022/23 school year (P-Ex. Q-7). The Student required small group instruction in order to progress in achieving her academic, language, and social-emotional goals (P-Ex. Q-8). The Student does not do well with constant 1:1 support because she is aware of her challenges and does not like to be singled out from her peers (P-Ex. Q-8). The Student had difficulty with focus and attention, struggled to advocate for herself and tended to shut down when overwhelmed (P-Ex. Q-8). She became more of an active participant in her classes, but still required prompting and encouragement to maintain her focus, attention, self-regulation and engagement with a task (P-Ex. Q-8). She also needed a significant amount of related service support and opportunities to work on her academic and related service goals in various settings to generalize her skills across a variety of environments (P-Ex. Q-8). The Student tended to shut down when feeling overwhelmed and needed frequent prompting to stay focused on the task at hand due to her distractibility (P-Ex. Q-8). She had difficulty identifying and expressing her emotions and had difficulty adjusting to changes in routine (P-Ex. Q-9). In order to assist her, the Private School used visual schedules, discussed expectations, and reviewed her schedule during daily morning meetings (P-Ex. Q-9). They also used a classroom reward system to motivate students to stay focused and to meet classroom expectations (P-Ex. Q-9). The Student was highly motivated by the classroom reward system, which was also used during related service sessions for continuity (P-Ex. Q-9). Because of the Student’s language delays, she was also provided with ample processing time to respond to questions, as well as frequent prompting to stay on topic (P-Ex. Q-9). The Private School curriculum also included community outings where they worked with students on safely navigating the community, making purchases, and safely interact with members of the community in order to build independence (P-Ex. Q-9).

The Student attended the Private School during the summer of 2022, during which she was placed in a classroom with a total of 9 students, one lead teacher, one assistant teacher, and two paraprofessionals; and received related services (P-Ex. L; Q-12).

In September 2022, the Student’s reading and writing (“ELA”) and Social Studies classes had 12 students with two teachers and three paraprofessionals (12:2:3) (P-Ex. Q-9). The Math class had 6 students, one teacher, and two paraprofessionals (6:1:2) (P-Ex. Q-9). Her schedule also included Science, Technology, Art Therapy, Music, Music Therapy, and Movement and Yoga, as well as related services of Speech, OT, PT and counseling; and related service providers provided rotating support during recess, lunch, arrival and dismissal periods (P-Ex. Q-9). In her academic classes, the curriculum was delivered through whole class, small group, and individualized instruction, and the Student was provided with learning materials differentiated to her instructional level (P-Ex. K; O; Q-9).

The ELA curriculum focused on supporting her organizational, executive functioning, and interpersonal skills as well as developing her fluency, decoding, vocabulary, and comprehension skills (P-Ex. Q-10). She was provided with a reading toolkit of strategies for approaching a text and constructing meaning before, during, and after reading (P-Ex. Q-10). To strengthen decoding skills, she participated in weekly word study sessions in small groups of three students, targeted to her individual instructional level (P-Ex. Q-10). The Student made meaningful progress in ELA with the supports (P-Ex. Q-10). Over the course of the school year, she worked on advocating for herself when she needed support (P-Ex. Q-10). During literacy, she demonstrated independence with classroom routines and identifying some key events in texts; she demonstrated good fluency when reading and was able to decode and follow along while other students read aloud; she demonstrated the ability to make personal connections to texts; but still needed prompting to focus while others were speaking (P-Ex. Q-10). With teacher support she was able to sequence chapters from her class text and make logical predictions (P-Ex. Q-10). According to ELA assessments at the end of the school year, the Student was reading at an early 2nd grade level and made steady progress in decoding and comprehension (P-Ex. K; L; O; Q-10). During ELA instruction they also worked on her ability to cooperate with a team to accomplish team goals and communicate effectively with her peers and teachers (P-Ex. Q-11). The Student made progress in this area as well, was able to sustain attention to her academic work for a longer period of time (P-Ex. Q-11). Writing continued to be a challenge and the Student needed teacher support to begin writing, and benefited from prompting, sentence starters, graphic organizers and brainstorming exercises (P-Ex. Q-10). She was also supported with graphic organizers, sentence starters, teacher modeling, editing checklists, visuals, and a 5W’s chart to remind her to add more details to her writing (P-Ex. Q-10). With teacher support she was able to write 2 to 3 sentences at a time and then edit them, and was able to write her own story about a special day as a culminating project during the school year (P-Ex. Q-11).

In Math, the Student received daily instruction in pairs or small groups of three (P-Ex. Q-11). She received individualized supports and modifications including frequency teacher checkins and use of manipulatives (P-Ex. Q-11). The Student participated in a Math Lab once each week in a group of three students, which focused on increasing her procedural fluency skills at her targeted instructional level (P-Ex. Q-11). The math curriculum focused on functional math, including understanding how math is used in daily life, financial literacy, and real-world financial experiences such as shopping (P-Ex. Q-11). The Student benefited from access to math tools and manipulatives, and was eager to participate in hands on math activities (P-Ex. Q-11). With teacher support and modeling, she was able to solve math word problems, she successfully participated in a culminating math project in which she wrote her own math problem for her peers to solve, and worked on solving her peers’ math word problems (P-Ex. Q-11). She also worked with her peers to conduct a survey, collect data and then present it in a pictograph (P-Ex. Q-11). The math assessments showed that the Student performed at a 2nd grade level in math, and that she steadily progressed with her math goals over the course of the 2022/23 school year (P-Ex. K; L; O; Q-11). In Social Studies, the Student also received support in her organizational, executive functioning, and interpersonal skills, and received modifications and supports including preferential seating, guided questions, teacher check-ins, and visual prompts to support her need in maintaining focus (P-Ex. Q-11).

The Student received Speech twice per week in a small group for 35 minutes; one session was pull out, and the other was push-in during Social Studies (P-Ex. Q-12). In addition, the speech therapist pushed into the ELA class once per week to support with classroom activities and provide individual, targeted support to the Student’s individual goals (P-Ex. Q-12). Individual Speech goals were developed based on her needs in receptive, expressive, and pragmatic language (P-Ex. Q-12). The Student made progress in her ability to answer “wh” questions, requiring less prompting, and also demonstrated improved comprehension skills and improved vocabulary (P-Ex. Q-12). She was able to sequence pictures and retell afterwards using visuals of the words “first, then, next and last” to guide her (P-Ex. Q-12). She also showed improvement with her social skills in small group sessions, but continued to need to work on her social/language pragmatics skills in a larger setting of 12 students (P-Ex. Q-12).

The Student received OT twice per week in a small group for 35 minutes in the fitness center (P-Ex. Q-12). OT services focused on addressing her challenges with her body awareness, executive functioning skills and her writing skills (P-Ex. Q-12). During handwriting activities, she benefited from the use of visual models, additional time, verbal cues to bring attention to errors, and the use of a writing checklist (P-Ex. Q-12). When working on improving her overall executive function, she benefited from the use of an organizational chart, checklists and verbal cues (P-Ex. Q-12). She also worked on strength exercises to improve her overall fine motor control, and showed improvement with maintaining a consistent letter size (P-Ex. Q-12).

The Student received counseling and self-regulation support in a small group of 9 students on a weekly basis, which was co-taught by the School Psychologist and an Occupational Therapist (P-Ex. Q-13). The Student worked on recognizing and labeling emotions, demonstrating an understanding of others’ feelings, and displaying coping skills (P-Ex. Q-13). The Student also participated in a Social Skills class one time per week with eight other students (P-Ex. Q-13). The class was taught by a speech pathologist and a school psychologist (P-Ex. Q-13). During the social skills class, the Student worked on cultivating peer relationships and developing emotional regulation skills (P-Ex. Q-13). The Student required moderate support to remain engaged in group activities, however, she was able to focus on the conversations and express her own thoughts and feelings in response, overall making steady progress with her counseling goals as well (P-Ex. Q-13).

The Student also received PT support twice weekly, with one sessions in a dyad, and the other in a small group of three students (P-Ex. Q-13). PT supported her difficulty with ambulation, navigation, and fatigue (P-Ex. Q-13). She worked on improving her strength and endurance over the course of the school year by participating in obstacle course activities, and demonstrated steady improvement (P-Ex. Q-13).

The Student also participated in “Mind Body Move” twice per week, a class that was coled with a physical therapist and focused on developing the Student’s motor, sensory regulation, and executive function skills (P-Ex. Q-13). The Student also attended Adaptive Skills once per week, which was co-led with the counselor, and focused on developing skills related to activities of daily living and improving functional independence (P-Ex. Q-13). The integrated and collaborative related services model, where related services clinicians actively participated and lead direct instruction across academic and community settings, was critical for the Student as she had difficulty generalizing her skills from one setting to another without the support of direct instruction (P-Ex. Q-13). With respect to the student’s progress at the Private Schools, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here, the evidence showed that the Student made progress. According to the Assistant Head of School, the Private School provided the Student with individualized instruction, including a small student to teacher ratio in a positive classroom environment with weekly counseling, speech, and occupational therapy sessions, tailored to meet her needs (P-Ex. Q-14). The program provided the Student with significant support in academics, language and other related services and helped her improve her social and life skills to be a more independent student (P-Ex. Q-14). She was provided with small group support and individual support as needed (P-Ex. Q-14). She was provided with materials at her level, grouped with peers at similar functional levels, and prompted and encouraged to participate by teachers and peers alike (P-Ex. Q-14). Her confidence has improved, she is engaged during learning activities and is making steady progress in all content areas (P-Ex. Q-14). Based on all of the above, I find that the Private School was an appropriate placement for the Student for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process and communicated their concerns with the District.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2022/23 school year. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Parent is entitled to reimbursement and funding for the 2022/23 school year, as well as transportation. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1). ORDER THAT, the District shall reimburse the Parent and/or directly pay the Private School for all tuition and fees for the Student’s unilateral placement at the Private School during the 2022/23 school year, and provide transportation.

SO ORDERED

DATED: August 8, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. Due process complaint 1/27/223 16 pages

B. Ten day notice 6/20/22 12 pages

C. Enrollment contract 6/7/22 1 page

D. Attendance record '22/'23 1 page

E. Attendance for summer 2022 1 page

F. Tuition affidavit 5/24/23 1 page

G. Schedule for 2022 22/23 1 page

H. School schedule summer 2022 1 page

I. Program description Undated 7 pages

J. Additional program description Undated 2 pages

K. Progress report 2/3/23 24 pages

L. Progress report summer 2022 6 pages

M. Progress report 6/17/22 22 pages

N. Neuropsychological evaluation 11/7/22 21 pages

O. Progress report 6/16/23 27 pages

P. Parent income letters 7/5/23 6 pages

Q. School administrator affidavit 7/5/23 14 pages

R. Parent affidavit 7/5/23 11 pages

Footnotes

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

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

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