New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249240

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Joshua Pal, Esq.

Date of Filing: 06/26/2023

Hearing Requested by: Parent

Date of Hearing: 09/11/2023

Record Close Date: 10/03/2023

Date of Decision: 10/03/2023

BACKGROUND

The Parent,^[1] through counsel, filed a Due Process Complaint(“DPC”) on or about June 26, 2023. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer Student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (Ex. A).

Parent alleges that the DOE failed to recommend an appropriate placement for Student. (Id.) Specifically, Parent alleges that Student needed a full-time special education class plus related services, as opposed to the general education classroom with Special Education Itinerant Services (SEIT) sessions plus related services. (Id.) By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance during the summer months of the 2022-2023 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities. (Id.) Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. (Id.) In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student FAPE for the 2022-2023 school year, but that the b) Parent failed to meet that their burden regarding the appropriateness of Private School, and c) even if Prong I and Prong II were satisfied, the equities would not support the Parent’s entire requested relief.

PROCEDURAL HISTORY

I was appointed on June 27, 2023. I wrote to the parties that same date scheduling a pre-hearing conference. On July 27, 2023, the parties appeared for an eScribers conference. The parties indicated that they had been unable to resolve the matter and elected to proceed with a due process hearing (“DPH”). At that time, the parties jointly moved for an extension of the compliance period, which I granted.

On September 11, 2023, both parties appeared for a virtual hearing. The DOE did not seek to introduce witness testimony nor any other evidence, essentially conceding it had failed to offer the Student an appropriate education for the school year at issue. Parent submitted nine (9) exhibits into the record on consent of the DOE. DOE made no opening statement and rested. Parent offered the testimony of two (2) live witnesses: Parent and Director of Private School. The DOE cross-examined Director but had no questions for Parent. Parent rested, at which time DOE and Parent’s counsel each made an oral closing. (See Transcript at 75).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

On or about August 16, 2021, when Student was two (2) years old the Committee on Preschool Special Education (“CPSE”) convened to develop an Individualized Education Program (“IEP”) for Student. (Ex. B). The CPSE noted that Student presented with average nonverbal cognitive development and low average verbal cognitive development. (Id.). The CPSE further noted that Student’s speech was unclear and that they were difficult to understand. (Id.). Student had significant gross and fine motor deficits. (Id.). Student was unable to remain seated and focused or attentive when listening to a lesson or story without being redirected. (Id.). Student was easily frustrated and would tantrum^[2]. (Id.). Student did not readily communicate their wants and needs and had a difficult time sharing or taking turns. (Id.). The CPSE recommended seven (7) and a half hours of SEIT services in addition to three (3) weekly sessions of Occupational Therapy (OT), three (3) weekly sessions of Physical Therapy (PT), and two (2) weekly sessions of Speech Language Therapy (SLT), to be implemented starting on September 13, 2021.

As of the start of the 2022-2023 school year, Student was a [REDACTED]-year old student (soon to turn [REDACTED]) and was classified as a Preschool Student with a Disability. On or about November 4, 2021, Parent sent a letter to the CPSE informing them of their disagreement with the proposed placement.^[3] (Ex. H). In their letter, Parent requested that Student be placed in a full-time special education classroom, as opposed to receiving SEITs. (Id.). Parent also informed the CPSE that they unilaterally placed Student at Private School and were seeking tuition funding. (Id.). There is no evidence in the record that another IEP was developed for the 2022-2023 school year. On or about June 20, 2022, Parent sent another letter to the CPSE, informing them that they had “not received a proper or adequate educational placement for the upcoming extended twelve-month 2022-2023 school year.” (Ex. I). In that letter, Parent advised that if the issue was not resolved, they intended to unilaterally place Student in the special education program at Private School and would be seeking tuition funding. (Id.). On June 21, 2022, Parent signed a contract with Private School, enrolling student for the months of July 2022 and August 2022.^[4] (Ex. C). The contract obligates Parent to be responsible for the $24,000 tuition for this time period ($12,000 per month), should the DOE not be ordered to pay the tuition. (Id.).

Private School accepts children between the ages of three (3) and six (6) and has up to eighteen (18) students in a given classroom. (Ex. C). Private School integrates students with special education needs in classrooms with general education students. (Id.). Each student at Private School has an education team which follows the general long-term and short-term goals as developed by the team and written in the student’s IEP. (Id.). Goals are created in accordance with the student’s needs and the curriculum is modified as needed to enable the students to meet their goals. (Id.). Related services, if needed, are also provided by Private School. (Id.). Teachers are in regular contact with parents regarding the students’ progress. (Id.).

Prior to the start of the 2022 Summer months, a Functional Behavior Assessment ("FBA”) was prepared by Private School regarding Student. (Ex. G). In this assessment, several problem behaviors were identified as, including but not limited to: tantrum, defiance, fidgeting, aggression, baby voice, poor self-regulation, lacks functional play skills, and disrespectful. (Id.). This assessment included a hypothesis as to how often these behaviors would occur and also listed behavioral supports and interventions which were currently in place, which in part included: counseling, token system, modeling, advanced warning, repeated and explicit instruction, broken down tasks, and self-regulating strategies. (Id.). A Behavior Intervention Plan ("BIP”) was updated/created on July 1, 2022, which listed the baseline frequency for the Student’s problem behaviors as well as the current status as of August 2022. (Id.). A treatment plan was created on July 8, 2022, which included background information on Student, identified Student’s maladaptive behaviors, their attentive issues, and current academic levels. (Id.). A Teacher Progress Report was generated by Private School in August 2022, which stated that Student was below grade level in reading and math. (Id.).

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, at hearing. While the DOE Representative did not indicate on the record that it conceded Prong I, it nevertheless presented no witnesses or other evidence. (See Transcript)]. Therefore, I am constrained to find that the DOE failed to offer Student FAPE for the 2022-2023 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2022-2023 school year.

Prong II

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

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

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

In describing Student’s areas of concern when they started at Private School, Director testified that Student was far below grade level. (Transcript at 43). It is worth noting that Student was in the Kindergarten class at Private School. (Transcript at 36). Director also testified that Student was [REDACTED] years old in June 2022 and turned [REDACTED] in September. (Transcript at 63). I take official notice that in New York City, students begin Kindergarten in September of the calendar year in which they turn [REDACTED]. The fact that Student was below grade level and was struggling in a Kindergarten program when they were [REDACTED] years old raises further concerns with the appropriateness of the program in which Parent unilaterally enrolled Student. Based on this testimony, I find that Student was inappropriately placed in a program too advanced for a typical student of the same age as Student, and certainly too advanced for a preschool child with documented special education needs.

The threshold question when considering whether an Extended School Year (“ESY”) of twelve (12) months is appropriate is whether such a program is necessary to prevent substantial regression. 8 N.Y.C.R.R. §200.6(k); 200.1(eee). With respect to preschool students, they may be considered for such a program if (a) their management needs are determined to be highly intensive and require a high degree of individualized attention and intervention; or (b) they have severe multiple disabilities, whose programs consist primarily of habilitation and treatment; or (c) have severe multiple disabilities and require primarily habilitation and treatment in the home; or (d) whose needs are so severe that they can only be met in a seven (7)-day residential program; or (e) who disabilities are severe enough to exhibit the need for a structured learning environment of twelve (12) months duration to prevent substantial regression as determined by the CPSE. 8 N.Y.C.R.R. §200.16(i)(3)(v).

"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]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that is requires an inordinate period of re-teaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006) (available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm);

"Questions and Answers Extended School Year 2017," Office of Special Educ. [Feb. 2017], available at http://www.p12.nysed.gov/specialed/applications/ESY/esy-2017/ documents/questions-and-answers-extended-school-year-2017.pdf; Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial aggression has occurred).

Here, there is no evidence in the record before me that items (a) through (d) are applicable to Student. I find that the behaviors exhibited by Student, taken as a whole, do not rise to the level of being highly intensive and requiring a high degree of individualized attention and intervention as required by the Regulations to be considered for ESY. 8 N.Y.C.R.R. §200.16(i)(3)(v)(a). With respect to Student’s risk of substantial regression, the only evidence in the record is through the testimony of Director. (See Transcript at 47). During their direct examination, they stated that Student was so far behind and that any time they had a break in sessions based on holidays or weekends, they saw greater delay than the typical special needs child. (Id.). The Director further testified that Student required the additional reinforcement through the summer program so that they did not have a regression over the summer like they saw during holiday time. (Id.). I find Director’s testimony more conclusory than informative with respect to Student’s potential regression. In order to establish substantial regression, there must be data related to a particular skill or particular knowledge that Student had previously mastered that took an inordinate amount of time to re-learn. The record before me is devoid of any such data. In fact, Parent submitted a 29-page document containing assessments, plans, and reports related to Student. (Ex. G). As discussed above, this document included an FBA, Assessment of Current Functioning, BIP, Treatment Plan, Teacher Progress Report, Speech and Language checklist, OT checklist, and a PT checklist. (Id.). Among these various components of Parent’s exhibit G, which purport to identify areas of concern and track the progress made in these areas, there is not one mention of Student’s risk of regression – substantial or otherwise – and the need for a twelve-month ESY to address this risk. There is no information regarding Student’s level in any particular skill or area prior to a break in instruction, Student’s level upon return from said break, and any measure of how long it took for Student to return to their pre-break level. (Id.). Considering this, I cannot find that the unilateral placement was appropriate to address Student’s needs.

Even were I to find that there was a substantial risk of regression which necessitated Student’s placement in an ESY program, I find that it is nearly impossible to make a determination regarding Student’s progress based on the documents that comprise Parent’s Exhibit G. Pages 2-6 of Exhibit G include the FBA for Student, which is dated June 24, 2022, just prior to the start of the 2022 ESY. This section states that Student struggles in structured settings, refuses to transition and follow classroom routines, lacks joint attention, and engages in aggressive behaviors. (Ex. G-3). The BIP (Ex. G-8 through 12) is dated July 1, 2022 and states that it is updated quarterly. (Ex. G-8). This document lists eight (8) behaviors and contains one column titled “Baseline July 2021,” which lists how many times per day or session Student exhibits each behavior and another column titled “Current Status August 2022,” which either indicates that the behavior is mastered or how many times per day Student exhibits each behavior. (Id.). The document itself is unreliable, in that it is dated July 2022 yet purports to contain data reflective of Student’s August 2022 levels. (Id.). Even accepting the document as accurately reporting Student levels in each of these behaviors in July 2021, when Student began attending Private School, and in August 2022, at the end of the time period at issue in this case, it is unclear as to when Student reached the August 2022 levels. Director testified that they saw a reduction in the frequency, intensity, and duration of the challenging problems Student presented with at the beginning of the summer (Transcript at 50). However, they later acknowledged that the documents submitted do not indicate Student’s current level as of the start of the Summer 2022 session. (Transcript at 64). Despite Director’s testimony that data was taken quarterly and that Student’s current levels were recorded prior to the start of the ESY, the only data points offered for my consideration were from July 2021, when Student was two years old, and August 2022, following the summer months at issue here. I am constrained to give the Progress Reports little weight, as they provide me with no information from which I can reach a conclusion with respect to Student’s progress over July and August of 2022.

Further, Director testified that they observed improvement in the number of minutes that Student was able to focus and attend, the time Student was off topic, that behavior challenges reduced, and that they observed an increase in Student’s active engagement and capacity to be involved in the repetition of instruction. (Transcript at 51). Specifically, in math class, Student was able to focus for longer periods of time ^[5]. (Id.). However, this testimony is inconsistent with the Teacher’s Progress Report, dated August 2022, which stated that Student struggles to adhere to teacher demands and follow classroom routines, is defiant, is aggressive, uses inappropriate language, and struggles to maintain attention for even short periods of time. (Ex. G-19). Based on this contradictory evidence, I find Director, who has a vested interest in the success of the Parent’s claims, to be less than credible and will afford their testimony little weight in making my findings. The document itself also offers contradictory information. The BIP indicates that Student Mastered their defiant behavior, only engages in aggressive speech^[6] one time per day and demonstrates aggression^[7] twice a day as of August 2022 (Ex. G-8), yet the Teacher’s Progress Report indicates that these behaviors continue. (Ex. G-19). Based on this, I find the documents submitted to be unreliable and afford them little weight in reaching my findings. Based on the above, I cannot find that the program and the supports offered at Private School were appropriate. As more fully discussed above, the antecedents of these identified interfering behaviors appear to be in response to the Student’s environment – a kindergarten classroom the Student was unilaterally placed as a [REDACTED] year-old. (Transcript at 63).

Additionally, the Speech and Language checklist, dated August 2023, lists over forty evaluative (40) skills or tasks and indicates how frequently Student has difficulty with said items (Often, Sometimes, Rarely, or Never). (Ex. G-20 through 24). For each of the items, the provider indicated that Student often has difficulty. While this case does not involve any period of the 10-month 2022-2023 school year, and the record before me does not indicate Student’s frequency experiencing difficulty in any of these areas, the fact that Student often has difficulty with every one of these items after two years of attendance at Private School raises serious questions as to the appropriateness of the Private School placement. Even where a private school generally has services that might meet a student’s needs, if the school fails to tailor its program to the student’s unique needs and the student fails to make progress in the program, the program will not be considered an appropriate placement under Prong 2. Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 510-511 (S.D.N.Y 2010)

In light of the above, I find that Parent has not met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. The weight of the evidence does not establish that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364.

Equities

While I find that Parent has not met their burden with respect to Prong II and is not entitled to an award of tuition for July and August of 2022, I will review the equities for completeness of the record. Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent failed to provide the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. (Ex. I). The letter from Parent was dated June 20, 2022, which was nine (9) days prior to the July 1, 2022 start of the ESY. Parent argues that because there was no evidence that the DOE provided Parent with the Procedural Safeguards Notice in the twelve (12) months prior to the start of the 2022-2023 school year, there may be no reduction of any award to Parent for failing to give the full ten (10) business day notice of the unilateral placement. However, this argument appears to be an attempt to shift the focus away from Parent’s failure to comply with the requirements regarding notice. The prohibition on reduction of any award is appropriate when Parent was placed in a position where the District’s failure to provide the Procedural Safeguard Notice resulted in a parent truly being unaware of the procedural requirements. In this case, Parent offered into evidence the Ten Day Notice from the previous school year, dated November 4, 2021. (Ex. H). While not in evidence, counsel for Parent represented that there was actually another notice sent to the DOE prior to the November 2021 letter. (Transcript at 24). Given that Exhibit I was Parent’s third Ten Day Letter sent on behalf of Student, they cannot in good faith now argue that they were unaware of the requirements and were prejudiced by any failure to by the District to provide a copy of the Procedural Safeguards Notice.

Lastly, the tuition charged by Private School, for which Parent seeks direct funding, must be considered in a review of the equities. Parent seeks direct funding of $24,000, as Private School charges $12,000 per month for the months at issue. (Ex. D). Private School does not charge a flat tuition for the summer session, as the contract breaks the tuition down by month. According to the attendance record submitted by Parent, there were twenty-one (21) days of instruction in July 2022 but only fifteen (15) days of instruction in August, as the summer portion of the ESY ended on August 19, 2022. (Ex. F). The equities would demand that a lesser amount be charged for the month of August, as this month had nearly 30% fewer days of instruction. It would seem unreasonable for the DOE to be ordered to pay for a period when school is not even in session.

Here, I am not awarding tuition in this case, due to Parent’s failure to meet their burden regarding the appropriateness of their burden. However, even if I were to find that Parent’s satisfied Prong II, the amount of the total award would be reduced by $4,000, to account for the 30% difference in days of instruction in the month of August (resulting in a 30% reduction in the $12,000 tuition ($3,600) being charged for that month), as well as a nominal reduction for the late Ten Day Notice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for direct funding for the Student’s unilateral placement at the Private School is DENIED for the summer months of the 2022-2023 school year. This matter is dismissed with prejudice.

Dated: October 3, 2023

Joshua Pal

_____________________

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

Exhibit	Title	Date	Pages
	none

PARENT EVIDENCE

Exhibit	Title	Date	Pages
A	Request for Due Process Proceeding	06/25/2023	5
B	IEP	08/16/2021	23
C	Student Contract, Program Description, and Curriculum	06/21/2022	23
D	Affirmations Regarding Tuition and Breakdown	09/04/2023	2
E	Curriculum Schedule	Summer 2022-2023	2
F	Student Attendance	Summer 2022-2023	1
G	Assessments, Plans, Reports	Various	29
H	Notice to DOE	11/04/2021	2
I	Follow up Notice to DOE	06/20/2022	2

IHO EXHIBITS

Exhibit	Title	Date	Pages
	none

APPENDIX

[REDACTED] Information	Term Used In FOFD
[REDACTED]	Student
[REDACTED]	Parents/Guardians
[REDACTED]	Parent Attorney/Representative
[REDACTED]	District Attorney/Representative
[REDACTED]	Private School
[REDACTED]	Director (for the [REDACTED] Child Care Center)

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Footnotes

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

[2] Neither the IEP (Ex. B) nor the progress reports from Private School (Ex. G) described the specific behavior that constituted Student’s tantrums.

[3] Parent’s counsel represented that this November 4, 2021 letter was the second such letter sent to the CPSE but this earlier letter was not submitted into evidence, as it was deemed by Parent’s counsel to be irrelevant to the school years at issue here. (See Transcript at 23-24).

[4] Despite Parent’s statement of intent in Exhibit I to enroll Student for the twelve-month school year, the only contract entered into evidence was for the summer months of 2022 (as opposed to the remaining ten months of the school year). July 2022 and August 2022 are the only months at issue in this DPC.

[5] Director did not specify what constituted “longer periods of time.”

[6] Aggressive speech was defined as any occurrence of Student using loud volume, making rough or tough statements, or talking about gruesome topics. (G-8).

[7] Aggression was defined as any occurrence of Student deliberately ruining a peer’s creation, grabbing from a peer, or hitting. (Id.).