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Special Education Law
DECISIONMixed ResultIHO Case No. 249622

Impartial Hearing Decision

December 8, 2023·Michelle S. Babbitt·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number: 249622

Student’s Name: Redacted

School District: Service District #REDACTED, Home District #REDACTED

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 06/30/2023, amended DPC filed 8/28/2023

Hearing Requested by: Parent

Dates of Hearing: 10/13/2023

Record Close Date: 12/1/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10.13.2023:

For the Student:

Redacted, Esq., Attorney (hereinafter referred to as “Parent’s Representative”) Redacted, Esq., Attorney Redacted, Speech-Language Pathologist (hereinafter referred to as “Witness #1”) Redacted, Occupational Therapist (hereinafter referred to as “Witness #2”) Redacted, BCBA, Redacted (hereinafter referred to as “Witness #3”) Redacted, Head of School, Redacted (hereinafter referred to as “Witness #4”) Redacted, Parent (hereinafter referred to as “Witness #5)

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s representative”)

Date of Decision: 12/8/2023

BACKGROUND AND LIMITED PROCEDURAL HISTORY

The Parent, through counsel, filed a Due Process Complaint on 6/30/23 and then filed their amended due process complaint on 08/28/2023 (together, “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). Alleging a deprivation of FAPE, the Parent sought reimbursement and/or funding for the following costs and expenses for the 2023-2024 school year:

a) tuition and costs at the Private School b) up to 10 hours per week of after-school ABA c) up to 2 hours per week of after-school Speech and Language Therapy (SLT) (including feeding therapy) d) 1 hour per week of after-school Physical Therapy (PT) e) Social Skills group one day a week after-school f) up to 2 hours per week of after-school Occupational Therapy (OT) g) up to 2 hours per week of parent training and counseling (PTC) h) up to 2 hours per week of after-school ABA supervision i) monthly ABA meetings (1 hour per therapist) j) monthly interdisciplinary team meetings (l hour per service provider) k) transportation costs to and from the school (Exhibit A-11).

The undersigned Hearing Officer was appointed to preside over this case on 7/7/2023.

On 8/2/2023, I held a pre-hearing conference in this matter. The parties selected a hearing date of 9/11/2023. The parties also agreed to this date for a hearing on the issue of pendency, if such is being requested. At the PHC, Parent represented that pendency is based on an unappealed FOFD dated 6/14/2021, which provided for placement at Redacted and after-school services, including ABA, PT, SL, OT, PTC, and various meetings between/among providers and parents. The District stated that it would not sign the pendency form submitted by the Parent as the relief sought (the unilateral placement) is not in accord with the FOFD. Parent argues that the Private School, the present unilateral placement, is substantially similar to Redacted, and Redacted is no longer available as a placement for the Student. Parent did not provide information as to why Redacted was no longer available. On or before 8/25/2023 Parent was directed to advise if the prior unilateral placement became unavailable to the Student and if parent will be withdrawing its pendency request (IHO Exhibit 1). On 9/13/2023, the District signed a pendency form.

Parents requested an adjournment of the hearing date, which was rescheduled to 10/13/2023. Participating in the hearing were Petitioner’s representative, and an attorney from the DOE.

HEARING

At the hearing, I confirmed that the District was conceding Prong I (Tr. 26).[1] The DOE did not submit any disclosure (Tr. 27). The District, however, challenged the appropriateness of the unilateral educational placement by the Parent (Tr. 26-27).

At the inception of the hearing, Parent’s representative noted that the District representative had not advised the Parent that they wanted to cross-examine any of the witnesses for which affidavits had been submitted in lieu of direct testimony. Accordingly, Parent’s representative objected to any cross-examination by the District. The District representative stated at the hearing that he was seeking cross-examination of two witnesses. Since the District representative did not have a viable basis for the District failing to notify the Parent of its intention to cross-examine witnesses, I confirmed my directive in the PHC (IHO Exhibit 1-2) and sustained Parent’s objection precluding the District from cross-examination of witnesses. However, I advised that since I had notified the Parent that I would have questions for the witnesses to clarify and complete their testimonial affidavits, the District could ask questions only as to those limited areas inquired into by this tribunal (Tr. 28-30).

The District waived making an opening statement (Tr. 30-31) and did not disclose any documents or call witnesses (Tr. 27, 35, 46). The District was not raising any Prong III equitable issues (Tr. 34-35). Such statement and actions are a concession by DOE that it denied the student a FAPE over the period at issue, the school year 2023-2024.

The Parent made an opening statement, discussing the Student, the Private School, and the “robust” after-school program and asserted that the “record” would show that the Parent’s unilateral placement was appropriate (Tr. 31-34).

The Parent offered Exhibits A-L into evidence, with no objection from the DOE (Tr. 36-39). Exhibit M is a progress report from the prior school year, 22-23. This tribunal questioned how it was germane to the 23-24 school year before me. Parent’s representative stated there was no progress report from the Private School for 23-24, although the Student had been in school for approximately 3½ months, and that the progress report from the prior school year would serve as a baseline for the testimony of Witness #4. I allowed Exhibit M to be admitted into evidence subject to connection by Parent’s representative in their closing written summation (Tr. 39-41, 46). I made a similar inquiry as to Exhibit O, a progress report from an after-school ABA provider dated 5.23. Parent’s representative asserted that since the ABA provider had not submitted an updated progress report, it would provide a baseline for testimony. Parent’s representative apparently was confused and conflated the after-school ABA provider with those providers and progress reports issued by the Private School. I ruled that the document was irrelevant to the school year before me, and unless a witness connected it, Exhibit O would not be admitted into evidence (Tr. 41-43). Exhibits N- Q were admitted into evidence, with the same caveat for Exhibit M and O (Tr. 44, 46). Exhibits RR-BB were admitted into evidence with no objection from the District (Tr. 44-46).

Parent and the DOE each submitted a written closing argument and legal memorandum dated 11.28.23 and 11.29.23. [2]

FINDINGS OF FACT AND DECISION

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

According to a progress report from the Private School for the prior school year (22-23), [T]he Student is diagnosed with Autism. [The Student] exhibits delays in social/emotional development and adaptive behavior. [The Student] has a history of engaging in high rates of off-task behavior; emotional dysregulation and physical dysregulation. [The Student] presents as selfdirected and engages in behavior that requires consistent support to access the curriculum in both 1:1 and group activities. Due to his complex medical diagnosis, he requires significant support to navigate his environment and demonstrate executive functioning skills. These behaviors have greatly hindered [the Student’s] ability to form relationships with his peers, independently navigate his environment, or participate in a less restrictive academic setting. [The Student] requires a small class size with a low student to staff ratio to participate in instruction (Exhibit M-2).

As stated during the hearing I do not find outdated progress and neuropsychological reports to provide useful information to the issues before me, especially since witnesses were not produced to explain their significance to the current school year, and therefore, are not considered in reaching my determination (See Exhibits D (only neuropsychological report not considered), E, M (not considered except for information as to Student quoted above), and O). The 2021 neuropsychological evaluation[3] spoke to the Student when he was 6 (he turned 7 during the evaluation) (Exhibit D-48). The Student was then attending a specialized private school that offered ABA-based instruction and support for children with Autism (Exhibit D-49). That report does not account for the Student’s present needs, almost three years later, and reliance on such by the Parent suggests that the Student has not made progress in his educational placement and his needs remain the same (IHO Exhibit-3-5-7).

Witness #1, the Speech and Language after-school provider has been providing services since 2017, the time she graduated with a master’s degree. She stated that the market rate for individuals with her experience is $280.00 per hour. Witness #1 did not determine the rate, but rather, she spoke with “her boss” to determine the reasonableness of the rate. Witness #1 has no independent knowledge of the market rate, except to testify that individuals coming right out of school charge $150.00 (Tr.49-51, Exhibit W-1-2). Witness #1 provides one hour of speech and language therapy (“SLT”) per week to the Student in a sensory gym shared with the occupational therapist who provides OT services to the Student (in fact, the OT is provided directly after SLT). Up to three other individuals are in the sensory gym receiving therapy, together with their individual therapists, while Witness #1 is administering services to the Student. Although Witness # 1 stated that the therapy has been consistent for the Student since April 2022, neither assertion is correct, as borne out by Witness #1’s live testimony and contradictory statements in the affidavit of Witness #1[4] (Tr. 51-54. Exhibit W-2-3). The Student is in the sensory gym for two to three minutes to regulate, and then he can better attend to the SLT. The Student did not attend SLT over the summer, as his Parents elected to send him to camp (Tr. 54-56). The Student was seen for one session in August and only a few sessions in September 2023. Witness #1 said the Student was not in the city in July (Tr. 61-62). Witness # 1 testified that the Student “has deficits in his pragmatic language, his play skills, his expressive and receptive language.” However, these deficits are being addressed at the Private School (Tr. 58). When I asked Witness #1 what she was working on that was not provided by the Private School she responded:

Because we -- we aren’t really bound due to, like, the academic demands that a school has, like, we can -- we can do everything in a much more naturalistic way, which is, you know, more functional to be able to practice these skills that are in a way that’s, like, motivating and personally relevant to him. And all of this, you know, we -- we can reinforce things that are taught at school. We can teach new skills still. And all of that, you know, extra language helps him be successful in school, as well as his, you know, community life with all of his social skills. (Tr. 58-59).

Witness # 1 was not aware of the methodology used at the Private School for SLT provided to the Student nor was she aware of how many hours the Student was in school (Tr. 59-60). Witness #1 has been providing services to the Student since 9.2022. She reads to the Student, not for literacy purposes, but to have a discussion (Tr. 60-62).

The following question and answer are instructive as to the SLT: HEARING OFFICER BABBITT: So isn't the one hour of speech and language therapy that you provide to the student - isn't that to maximize his speech and language?

WITNESS #1: Yes. (Tr. 64).

When asked why the one hour per week SLT was necessary for the Student to make progress at the Private School, Witness #1 responded:

I think that the main difference between us and school is that we can use a more child-led -- you know, we aren't really -- I’m going to say, bound by any, like, we have to make X, Y, and Z progress or, like, this is our curriculum. We can just follow his lead. And yes, we have our own, you know, goals that we have set for him based off all the checklists and things that we do for what would be, like, age-appropriate and developmentally appropriate. But [the Student] find that the, you know, one-on-one instruction is appropriate for [the Student] as well as using a more naturalistic way to -- instead of saying this is what we're going to do on this timeline and we can follow his lead and because it’s more, you know, meaningful to him, that’s ultimately going to be more functional to help him attain and then use this language which, you know, supports academics (Tr. 64-65; see also Exhibit W-4).

I again asked Witness #1 what the basis was for her statement that the Student could not make meaningful educational progress at the Private School without the one hour per week of after-school speech and language therapy. HEARING OFFICER BABBITT: What’s the basis for your statement that the student would not make meaningful progress at [the Private] School without the one-hour speech and language that you provide for him?

Witness #1: I think due to the differences of how we provide the therapy, it’s just another way to supplement his learning and -- and try to meet him where his needs are at the moment. (Tr. 66-67)

I noted to Witness #1 that I did not think she answered my question (Tr. 67). Similarly, Witness #1’s testimonial affidavit does not provide a cogent reason why SLT is necessary for the Student to make educational progress at the Private School (Exhibit W-7-8). Parent’s representative attempted to get a different answer from Witness #1 on re-direct:

PARENT’S REPRESENTATIVE: I’ll ask again, based off of your information and experience with [the Student], what is his need for this supplemental after-school speech-language therapy based on?

WITNESS #1: It would be based on still supporting his -- his deficits in pragmatic language, expressive and receptive language, and just doing it in a -- just taking another approach, and you know, giving additional services to, you know, give him that exposure and bombardment in just a different type of environment. (Tr. 69)

Witness #1 testified that “[d]epending on the skill being addressed, progress is determined by qualitative analysis of language sampling, by identifying cueing hierarchies (minimal/moderate/maximal), or by calculating percentages of #correct/#trials” (Exhibit W-4). No such analyses or samplings were admitted into evidence by the Parent. In describing progress made by the Student for this school year, Witness #1 detailed an example from 1.23.23, and said that the Student does not engage in that behavior now (“At the moment, the Student does not routinely use SVOPP sentences and conjunctions in his spontaneous language output”). The example was from the middle of the 22-23 school year and is not instructive as to progress made during the school year at issue, that being the 23-24 school year (Exhibit W-6-7).

Witness #2, the occupational therapist (OT), owns the agency providing services to the Student. The rate for her services is $225-$250 and depends on the session length and whether services occur in her office or at the Student’s home. Witness #2 sees the Student once weekly after the Student receives SLT (Tr. 57, 75-78). When Witness #2 was asked how long she had been providing services to the Student, she replied, “I've known [the Student] for several years. I don't know the exact number off the top of my head, but I have been working with him for some time.” She then said she had worked with the Student for a “few years.” I reminded Witness #2 that she had been working with the Student since he was four years old, about six years. She responded that she works with many students for long periods of time (Tr. 78-79; Exhibit X-1-2). Witness #2 stated there is an agreement between her and the Student’s Parents for the services she rendered to the Student. Such agreement was not put into evidence by the Parent. Similarly, no time sheets were submitted showing when OT was provided for the 23-24 school year (Exhibit X-2). Witness #2 did not know the name of the Student’s OT at the Private School, nor did she know how often the Student receives OT at the Private School (Tr. 79-80). Witness #2 is working with the Student “to address fine and visual motor, executive function, sensory processing, self-regulation, self-help, and motor skill development goals to support independence in daily routines across environments and provide parent education” (Exhibit X-4). Witness #2 opined that the Student “requires this intervention for carryover of his skills to make meaningful progress.” I asked Witness #2 what she meant by her statement.

HEARING OFFICER BABBITT: I mean, are you saying that if the student didn't come to you one time a week for 60 minutes, he would not make meaningful progress at the school? That they couldn't meet his needs?

WITNESS #2: I believe that [the Student] requires the one-on-one time also in a sensory gym working with an experienced therapist to have access to a sensory gym for home and parent education, as well. I think that's very important for [the Student]. He does require significant -- because of his delays, he does require significant therapy services and I don't believe that at school there is enough OT services. I don't. He has significant and global delays.

HEARING OFFICER BABBITT: Okay. So you think that he should get more physical -- I'm sorry. He should get more OT from the school, correct? That they're not providing enough is what you just said?

WITNESS #2: No, I didn't -- I didn't say that. I think that he requires more OT. I don’t know what is provided at [the Private School], as I said. I do believe he requires the aspect of having parent education. He has significant safety – poor safety awareness, delays in cognition, speech and language, gross and fine motor skills, and safety awareness (Tr. 80-81).

Witness #2 admitted that she does not deal with all the above-stated deficits. Witness #2’s answers were evasive. Witness stated that the Student required supervision at all times. I asked if supervision was the same as needing therapy. Witness #2 responded “no” (Tr. 81-83). Witness #2 did not provide services to the Student for either July or August (Tr. 84). Witness #2 did not know why the Student did not come for OT during the summer. She stated there was some regression, but over the summer, there was regression for neurotypical students as well (Tr. 84-87). Witness #2 did not know the methodology used to administer OT by the Private School (Tr. 88). Witness #2 works with the Student in her sensory gym. At the same time, 3 or 4 other therapists are working with other individuals in the same space (Tr. 89).

Witness #3, the after-school ABA provider, has been providing services to the Student since he was six years old. Witness #3 is the owner and founder of the Provider Agency. She does not provide direct services to the Student but is available to the Parent for training and field calls. Three different therapists provide direct ABA services to the Student. One is a licensed BCBA, and the other two providers are not licensed BCBAs (Tr. 97). Witness #3 provides PTC 8 hours each month and supervises the direct providers (Tr. 98) [5]. ABA is provided to the Student at his home for ten hours after-school each week on Tuesday, Wednesday, Friday, and either Saturday or Sunday. The ABA providers are flexible to accommodate the family’s schedule (Tr. 99-100). Witness #3 testified:

Sometimes the family is out of town. sometimes the family has events that they need support for the -- the student. Sometimes there's, you know, specific events. Other times there are play dates where we focus on social skills. There's a lot of -- a lot of skills that are worked on during those -- during those sessions, as well as during the week (Tr. 101).

So a therapist may start with [the Student] at his home on, like, a Saturday. There might be, like, let's say 10 to 1 where, I mean, we stay within the hours allotted. So let's say there's a three-hour session. And so maybe from 10 to 11:30 there may be, you know, working on his goals at home. And then he has to go to a school event.

Let's say, like, it's a book fair at his school, so then he'll go with the therapist because he needs the support to the book fair. And they may spend half an hour, maybe an hour there, and then return home for the rest of the session. So that's, like, one example. But you know, so I mean it can change. So that's just, like, an example of one book fair event. Another one could be a birthday party where he needs the support at a birthday party.

HEARING OFFICER BABBITT: Okay. So let me ask you this. During the week, is it pretty steady that the amount of ABA therapy's three hours? Is it one hour each day on Tuesday, Wednesday, Friday?

WITNESS #3: It's typically two to two-and-a-half hours and then allows for us to have weekend time -- weekend sessions (Tr. 101-102).

If the family is going away for the weekend the Student has extended sessions during the week (Tr. 102-103). Witness #3 testified that the ABA providers have been working with the Student on bathing skills for two years (Tr. 104-105). Witness #3 stated that the Private School is not working on bathing skills. Witness #4 testified that the Private School is working on this life skill (Tr. 105, 148 and Exhibit U-11). Witness #3 testified that she shares session notes with the Private School and has meetings with school personnel (Tr. 105-106). No session notes were put in evidence by the Parent, which Parent received after every session (Tr.115).

Witness # 3 provides approximately 2 hours of PTC. “Sometimes it's in person at home. Sometimes it's a Zoom meeting. Some it's phone calls. There might be a week with multiple phone calls. So it's not that -- that – the parent training is not a set schedule, but it is a set amount per -- per month that I make sure that we are coordinating and communicating and training (Tr. 106). Witness #3 testified as to the nature of Parent training:

With [the Student’s] development, he's -- he's very aware at this point of when we are talking about him. So we try to schedule their training and discussions about him when he's not present. If it entails implementing a protocol like, for example, you know, just within his family's life functioning, like, one of the -- one of the skills -- one of the issues or problematic behaviors that was presenting pretty consistently with the family but not with us was when if the family were to sit down and watch a show together on TV, he would incessantly scream or be disruptive so that it couldn't happen. And so that's an example of when I went in person and created a protocol with a visual -- with a visual schedule for him and we implemented the visual together with the family. And then I believe it was two weeks later, I followed up with another in-person visit to further that training with the parents, coaching them, making sure and -- you know, and it was successful (Tr. 107-108).

I asked about the significant hours sought for Parent training. Witness #3 stated:

There are a lot of skills that we're working on, parent skills that are not the student's skills, right. So the student has his list of goals and we've got parent goals that we’re specifically targeting. And they -- while they have made a lot of progress in many areas, they're you know, he -- so the student presents with pretty high behavior contrast where -- when the therapist is there and they are working, you know, successfully on the goals that we've written for him that we're working on. They are not automatically -- they're not automatically generalized with the parents. And so there is typically a period of training the parents, coaching the parents to implement this protocol. HEARING OFFICER BABBITT: Well, so I’m confused. Do you have set training that you give to the parents? Or it's responsive to the parents' questions about behavioral issues with the student?

WITNESS #3: Both. And with all of our families, there's, you know, it depends on what the -- what the -- what the needs just like our program is designed for, you know, to target the individual needs of every individual student, the parent's needs and learning styles are also taken into account (Tr.108-109).

There is no set schedule for Parent training. Nor are there set lengths for the session. Instead, Witness #3 uses the “bank” of eight hours per month to respond to the Parent’s requests (Tr. 109-111). Witness #3 stated they are working on community safety skills- when it is safe to cross the street, bathing, basic home chores, functional daily living skills, peer social skills, putting his clothes in the hamper, dressing himself, brushing his teeth (Tr. 117-118, 120.) Witness #3 further testified:

In terms of chores in the -- in the home, you know, for -- as part of, kind of, like his functioning within the family life and routines, you know, putting his plate in the sink, helping with preparing dinner, helping with setting tables, setting the table. I'm trying to think of some other. Oh, like making his bed, things of that nature (Tr. 122).

The DOE did not elicit any testimony or produce any evidence that refuted or otherwise called into question the appropriateness of the Private School for the Student.

Considering the foregoing and as more fully discussed below, I find that a) the DOE conceded that it did not offer the Student a FAPE for the 2023-2024 school year, the b) Private School offers Student specially designed instruction sufficient to meet Student’s needs, c) there was no showing that after-school SLT, OT and at-home ABA and PCT is a necessary component of the educational program, and d) the equities support the Parent’s requested relief for tuition reimbursement.

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 a 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. [6]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE"). 7 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”). 8 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. 9 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.” 10

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. Instead, the DOE Representative indicated on the record that DOE was not introducing any documents or presenting any witnesses. The District representative affirmatively conceded Prong 1(Tr. 26-27,35, 46). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2023-2024 school year.

Prong II

A private school placement must be "proper under the Act." 11 This means that the private school must offer an educational program that meets the student's special education needs. 12 Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” 13 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.” [14]

7 20 U.S.C. § 1400 (d)(1) (A) 8 34 C.F.R. § 300.[13] 9

Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 10 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). 11 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985). 12 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 need not show that the placement provides every special service necessary to maximize the student's potential.[15] 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.” [16] A private placement is appropriate if it provides instruction specially designed to meet the student’s unique needs. 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 benefits, 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. [17]

Here, Parent has demonstrated that the Private School: offers 1:1 and 2:1 support in a group setting. Group sizes vary, with most groups ranging from 6-8 students. Cohorts are established based on age and social skills. Each student is assessed to identify his/her grade level for reading, writing, and math. Students are then grouped with academic peers for math, English language arts (ELA), science, and history/social studies to facilitate targeted learning in small groups, dyads, and or 1:1 instruction based on learning style and needs. Our academic curriculum adheres to the NYS Common Core and is modified as needed. Each student has the opportunity to work with a NYS certified special education teacher that can modify work to meet his/her learning needs and style while still challenging and supporting intellectual and cognitive development. In addition to reading, writing, math, science, social studies/history, current events, art, music, STEAM, and adaptive physical education, [the Private School] offers daily social skills groups. Utilizing programs like Social Thinking Curriculum and Everyday Speech lessons target: executive functioning, theory of mind, organization, emotional vocabulary, self-advocacy, transitioning, accepting no, listening, and following directions the first time, relationships, etc.

Every classroom team is a co-leading model, one NYS certified special education teacher and one lead behavior therapist. Our lead behavior therapists are professionals that are working toward licensure and board certification in Applied Behavior Analysis (ABA) under the guidance and supervision of our BCBA/LBAs. At [the Private School], in addition to the classroom staff we have a full-time school nurse, mental health services, occupational therapy, speech and language therapy, and physical therapy. We feel an important component of teaching and treating the whole student is meeting all physical, developmental, and social emotional needs. Therefore, our related services and mental health services include individual and group sessions, in and out of the classroom, with our NYS certified and licensed providers (Exhibit I-1).

Witness #4 testified that the Student’s Parent will receive three comprehensive progress reports a year, completed by the Student’s entire team, and discusses his progress across all domains (Exhibit U-15). Again, I note that although the Student had attended the Private School since July 2023, Parent did not provide any progress reports from the current 23-24 school year (Exhibits G-1 and L-1). Parent provided weekly emails from the Private School to the Parent only for July and the first week in August (Exhibit Z). The Student’s class schedules are designed to foster development across all domains without interfering with classroom activities and to promote generalization across settings. Related services and mental health counseling sessions are scheduled in collaboration with the classroom team to promote regulation and provide in-class support during activities related to each domain (e.g. OT could be provided during the Student’s writing assignments) (Exhibit U-16). The Student receives OT three times a week for 30 minutes individually (Exhibit K and U-11). In OT, the Student is working on bike riding skills, his ability to shower independently [18], tying a knot, and his handwriting skills. Additionally, the Student continues to practice independent activities of daily living, personal hygiene, and self-care to increase his independence (Exhibit U-11).

The Student receives the following: 1) SLT three times a week for 30 minutes individually. So far this school year, the Student has been working on receptive, expressive, and pragmatic language. He is working on problems and solutions within social scenarios and picture scenes for receptive language. For expressive language, the Student has been working on sequencing and retelling a story (via picture cards/sequencing cards) and including a salient detail within the retelling (i.e., characters, location, descriptive words like colors and size) (Exhibit U-10-11).

2) PT two times per week for 30 minutes individually and is working on increasing his strength to improve his posture, body awareness, and balance, which has led to increased safety during environmental negotiation and gross motor play (Exhibits J, K, and U-12).

3) Counseling one to two times a week for 30 minutes individually and is working on increasing his strength to promote improved posture and further improve his body awareness and balance. The Student is also working on bilateral coordination, core strength, and bike riding (Exhibit U-12).

During the 2023-2024 school year, the Student receives instruction at the late kindergarten to early first-grade level in all academic classes (Tr. 185). The Student is in a class of 7 students who present with similar needs and skills and, developmentally, socially, and academically, are on similar functional levels to the Student (Exhibit U- 7 and Tr.133), with 1:1 instruction as needed (Exhibit U-16).

According to Witness #4, for the 23-24 school year, the Student relies on teacher prompting and redirection to focus his attention and enable him to be available for learning (Exhibit U-10). He has demonstrated improvements in his ability to attend and focus in class, effectively communicate, comply with directions, follow classroom routines, and maintain emotional and physical regulation throughout the day (Exhibit U-14).

Witness # 4 testified that the Student made progress as follows:

• Ability to self-regulate and listen to numbers being called in math class during game of number identification bingo • Understand direction during math game • Ability to stay on task • Moved up a grade level in instruction to the second part of the Wilson’s Curriculum in ELA • Improved listening and reading comprehension • In science class, understanding different phases of matter • Greater understanding and connections in new subject matter (Tr. 149-152).

I find that based on the testimony of Witness #4 and Parent’s exhibits, Parent has met their burden in proving that the Private School offers an educational program that meets Student’s needs under Prong II of the Burlington/Carter standard. In reviewing the record, the weight of the evidence establishes that the Private School addressed Student’s individual special education needs and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[19] The Private School is an appropriate educational placement for the Student for the 2023-2024 school year as it can meet his academic, communication, behavioral, social, self-management, and emotional needs.

Parent has Not Met its Burden concerning that Relief which seeks After-School Supplemental SLT, OT, ABA and PCT

The DOE is not required to design an educational program to address a student’s difficulties in generalizing skills to other environments outside of the school environment, i.e., at-home ABA, particularly where the student is progressing in the classroom. [20]

Courts have generally disfavored services intended to generalize skills outside of the school environment. Several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom.[21] The District is required to provide an appropriate education, not one that maximizes the student’s potential. [22]

Here, the Student attends a Private School that provides ABA services and/or utilizes ABA methodology throughout the school day. The DOE has no obligation to provide for additional at-home ABA unless the service is required for the Student to maintain/retain skills. Parent did not show that the at-home ABA services were responsible for the Student's progress observed in the Private School. Similarly, no evidence was adduced that supported the claim that the Student is unlikely to receive educational benefits from his schooling in the absence of home-based ABA services or the Student is likely to experience regression in the school setting in the absence of home-based ABA services.[23] The fact that the Student may benefit from at-home services in and of itself is not enough to entitle reimbursement for services provided in excess of a FAPE. The same is true of the afterschool SLT and OT; there was no objective evidence showing that absent these services, the Student would not progress in the Private School.

Parent did not present any testimony or documentary evidence showing: (i) To what extent the Private School could not service the student without the athome ABA services and after-school OT and SLT.

(ii) That the at-home ABA services and after-school OT and SLT were responsible for the Student's progress in the Private School.

(iii) The Student required services to maintain and retain skills.

(iv) The Student is unlikely to receive educational benefits from the Private School in the absence of home-based ABA services and after-school OT and SLT.

(v) The Student is likely to experience regression in the Private School setting in the absence of home-based ABA services and after-school OT and SLT.

The testimony introduced at the hearing concerning the Private School showed the independence and sufficiency of its educational program with ABA throughout the entire day. The Private School provides instruction and training to Parents to enable them to address the Student’s behaviors and skills while at home. The eight hours per month of Parent training are tantamount to the Parent having a “personal trainer” to call when she wants assistance and fortification. Witness #3 testified she was available to the Parent when needed. Parent training might be a Zoom meeting, a telephone call, or a PowerPoint presentation. Witness #3 might come to the family home and observe the Student with the family while they are watching a movie (Tr. 107-109). There is no set schedule for Parent training. Nor are there set lengths for the session. Rather, Witness #3 uses the “bank” of eight hours per month to respond to the Parent’s requests (Tr. 109-111). The training was used to improve matters at home, i.e., chores, bed making, watching television as a family.

The Private School offers “on-site support/training groups to the parents of each student to learn about the approaches/methodology used to address their children’s needs. The School strongly encourages parent(s)/guardian(s) to attend these sessions at least twice per month [implication is that there are more than two sessions per month]. In these sessions, parents also learn how to implement the ABA approach at home.” (Exhibit U-4). The Private School provides ample training for the Parent. The at-home ABA services would be redundant or duplicative of the parental support offered by the Private School.

Similarly, the direct ABA providers are working on the Student’s “functioning within the family life and routines, you know, putting his plate in the sink, helping with preparing dinner, helping with setting tables, setting the table. I'm trying to think of some other. Oh, like making his bed, things of that nature” (Tr. 122). These services are not the type contemplated under the IDEA that are necessary for the Student to make educational progress. Clearly, the afterschool ABA may benefit the Student, but not for educational purposes. Although, according to the Parent, the Student may need constant supervision or help in tying his shoes, fastening buttons, taking a shower, or tying his bathrobe (Exhibit Y-4), after-school ABA therapy is not to be used for childcare. It is also not intended to relieve parents of their parental duties. Life skills are being worked on in the Private School. There was no showing that they need to be duplicated by the ABA providers for the child to make educational progress in the Private School.

Witnesses #1, #2, and #3 did not coordinate efforts with the Private School. Witness # 1 was not aware of the methodology used at the Private School for SLT provided to the Student, nor was she aware of how many hours the Student was in school (Tr. 59-60). Witness #1 admitted that the SLT she provided to the Student was to maximize his speech and language (Tr. 64). When I asked Witness #1 why the after-school therapy was necessary for the Student to make progress at the Private School she failed to answer responsively but rather discussed how she was flexible to let the Student lead the therapy, rather than to succumb to any academic rigors imposed by the Private School. Similarly, Witness #1’s testimonial affidavit does not provide a cogent reason why SLT is necessary for the Student to make educational progress at the Private School (Tr. 64-67, 69 and Exhibit W-7-8).

Witness #2 said she was in contact with the providers at the Private School, but in neither her affidavit nor her testimony did she state the name of that provider or when she spoke with him/her. Witness #2 opined that the Student was not receiving enough OT at the Private School, but yet, when she testified, Witness #2 did not know the name of the Student’s therapy at the Private School, nor did she know how often the Student receives OT at the Private School (Tr. 79-81). Witness #2 did not know the methodology used by the Private School to administer OT to the Student (Tr. 88). There was testimony that the Student receives OT three times each week at the Private School (Exhibit K and U-11). The Private School and Witness #2 provide services to the Student for substantially the same challenges.

Witness #2 did not provide services to the Student for either July or August (Tr. 84). Witness #2 did not know why the Student did not come for OT during the summer. In the absence of the Student not receiving OT during the summer, which apparently was the decision of the Parent to have the Student engage in some other activity, I question the necessity of both the OT and SLT after-school services. Notably, the Parent’s affidavit does not address the related services for the summer months (Exhibit Y-8).

I do not fully credit the testimony and opinion of Witness #2 as to the Student’s needs.

Most notably, Witness #4 did not testify that the Student needed after-school SLT, OT, and athome ABA services to progress at the Private School. The services provided by the afterschool SLT, OT, and at-home ABA are to maximize the Student’s potential. Although I understand the Parent’s desire to provide the Student with the best education, that is not the mandate under the IDEA. I also question the ability of the Student to sustain such a full schedule, especially since the Parent stated that the Student “struggles to maintain focus on non-preferred activities in and out of school” (Exhibit Y-3). Furthermore, Parent testified that the Student attends an afterschool social group program and afterschool PT. Reimbursement is not sought for either of these programs (Exhibit Y-7-8). Parent has not shown any basis to award the requested supplemental “robust” services. They are not required for the Student to make meaningful educational progress.

Equities

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.”[24] 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. [25]

Here, the Parent provided the necessary 10-day Notice of their concerns with the DOE’s offer of FAPE to the Student for the 23-24 school year. Therein, Parent detailed specific concerns (Exhibit C). Furthermore, Parent notified the DOE of their intention to place the Student at the Private School unilaterally.

By way of relief, Parent seeks direct funding and reimbursement in the amount of $132,000.00 for the 23-24 school year (Exhibits G and H). Witness #4 admitted that the affidavit of payment incorrectly stated that the annual tuition is $138,000.00 (Tr.163).

There is no support in the record to find that the tuition associated with the Private School, although substantial, is not reasonable. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 23-24 school year. Overall, and after considering the record at the hearing, I find that the equities support Parent’s claim for reimbursement of the tuition for the 23-24 school year.

The District did not raise any Prong III equitable issues (Tr. 34-35).

Although the Parent requests DOE bussing service in its closing brief (IHO Exhibit 3-24), Parent failed to enter into the record a copy of the Student’s last IEP and did not provide any independent evidence of what transportation the Student needed or was receiving. The request for medical accommodation form may or may not have been submitted to the District (Exhibit BB). Since there was no testimony concerning this document, I am unclear as to its probative value. Accordingly, I am unable to address that component of relief.

The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.

ORDER

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

(1) Parent’s claim for tuition reimbursement in the amount of $132,000.00 for the Student’s unilateral placement, is GRANTED for the 2023-2024 school year as follows:

a. The District shall reimburse the Parent in the amount of $7,600.00, monies paid through 6.22.23 by Parent toward the Student’s tuition at the Private School.

b. The District shall make payment directly to the Private School for the remaining $124,400.00 due for tuition, upon submission to the District of an appropriate attendance record.

(2) The Parent’s request for afterschool SLT and OT is DENIED.

(3) The Parent’s request for at-home ABA services (direct and supervisory), Parent training and counseling and interdisciplinary team meetings are DENIED.

Dated: December 8, 2023

Michelle S. Babbitt (electronically signed)

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

None

PARENT EVIDENCE

A. Demand for Due Process with Email Confirmation 6.30.23 15 pages

B. Amended Demand for Due Process 8.22.23 12 pages

C. Ten Day Notice with Email Confirmation 6.15.23 3 pages

D. Parent Email to CSE sharing Reports for IEP Meeting 2022/2023 Redacted School Functional Behavior Plan and Behavior Intervention Plan Redacted School Progress Report, November 2022 2019 Redacted Neuropsychological Report10 Day Letter 1.15.23 63 pages

E. Parent Email to CSE sharing Additional Reports Occupational Therapy Progress Report from 01/04/2023 ABA Progress Report from 12/08/2022 Speech Language Therapy Progress Report from 12/14/2022 1.16.23 19 pages

F. Parent Email to School Placement Request a Tour 7.10.23 1 page

G. Redacted Enrollment Contract 5.1.23 17 pages

H. Redacted Tuition Affidavit 7.17.23 2 pages

I. Redacted Program Description 23-24 1 page

J. Redacted School Student Summer Schedule 23-24 6 pages

K. Redacted School Student Fall Schedule 23-24 6 pages

L. Redacted School Student Attendance Record 23-24 1 page

M. Redacted School Progress Report (admitted only subject to 6.23 connection by witness) 29 pages

N. Redacted Certification Undated 1 page

O. ABA Progress Report by Redacted (admitted only subject to connection by witness) 5.28.23 10 pages

P. Redacted License Undated 1 page

Q. Speech Progress Report by Redacted 8.23 4 pages

R. Redacted License and Resume Undated 3 pages

S. Occupational Therapy Progress Report by Redacted Therapy 9.4.23 4 pages

T. Redacted License Undated 1 page

U. Affidavit of Redacted 10.5.23 18 pages

V. Affidavit of Redacted 10.5.23 8 pages

W. Affidavit of Redacted 10.4.23 9 pages

X. Affidavit of Redacted 10.4.23 7 pages

Y. Affidavit of Redacted 10.5.23 11 pages

Z. Redacted Weekly Email Updates to Parents 7.23 3 pages

AA. Redacted Afterschool Social Program Description 23-24 4 pages

BB. Redacted Medical Accommodation Form 6.22.23 2 pages

IHO EXHIBITS

1. Prehearing Conference Summary and Order 8.25.23 10 pages IHO

2. DOE Closing Brief 11.29.23 9 pages IHO

3. Parent’s Post Hearing Brief APPENDIX Information Term Used In FOFD Redacted Student Redacted, Esq. Parent Attorney/Representative Redacted, Esq., Agency District Attorney Attorney/Representative Redacted School Private School Redacted, Speech-Language Witness # 1 Pathologist Redacted, Occupational Witness # 2 Therapist Redacted, BCBA, Redacted Witness #3 Redacted, Head of School, Witness #4 Redacted Redacted Witness #5 L.V. v. NYC Department of Education, 03 Civ. 9917 (SDNY) Parents of children with Individualized Education Programs who received or who may receive an order at the conclusion of an impartial hearing should read the attached notice about possible disclosure of information and documents about their children as part of a federal court litigation. Translations in Spanish, Arabic, Bengali, Chinese, French, Haitian Creole, Korean, Russian, and Urdu are available on the DOE webpage at https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Notice of Potential Disclosure of Student Education Records Please read this notice carefully. This is a message about possible disclosure of documents or data that might contain information about your child, if your child has been classified as a student with a disability and has been or may be the subject of a final Impartial Hearing Order. I. Nature of the Lawsuit This lawsuit challenged the failure of the Department of Education (“DOE”) of the City of New York to timely implement orders issued by impartial hearing officers in connection with impartial hearings held pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 11.28.23 1400, et seq. and N.Y. Education Law § 4401, et seq. In 2007, the parties entered into a Stipulation of Settlement (the “Stipulation”) in which the DOE agreed to timely implement these orders. In January 2021, the Court granted plaintiffs’ motion for the appointment of a special master. On April 14, 2021, the Court entered an Order appointing REDACTED of Thru-Ed as the Special Master. On May 14, 2021, the Court entered an Order detailing the duties and authority of the Special Master which include, among other things, the authority to review DOE’s processes for implementing impartial hearing orders and to recommend to the Court improvements to enable 24 pages IHO

II. DOE to timely implement orders a. Pursuant to this Order, the Special Master may have access to education records of students, upon DOE’s compliance with the Family Education Rights and Privacy Act (20 U.S.C. § 1232g; 34 C.F.R. Part 99) (“FERPA”). 2 Data Ordered to Be Disclosed In order for the Special Master to perform his duties, the Court has directed the DOE to provide the Special Master (and employees and consultants at Thru-Ed) with access to records containing confidential student record information, including, but not limited to, documents submitted in the impartial hearing process, impartial hearing orders, data about compliance, and students’ special education documents, such as individualized education programs, evaluations, authorizations, invoices, etc. The Special Master is required to keep any student documents and information confidential. No student-specific information will be shared with plaintiffs’ counsel unless the student’s parent specifically consents. If there is any student-specific information in the Special Master’s reports to the Court, that information would not be made public. The Special Master will use this information only for his work to review DOE’s processes for implementing impartial hearing orders and to recommend to the Court improvements to enable DOE to timely implement orders. The disclosure of this information does not affect any of your rights as a parent to seek special education services for your child. IV. Objections to Disclosure If you agree to the disclosure of this information to the Special Master, you do not need to do anything more. If you do not want your child’s information shared with the Special Master, you must object to this disclosure by submitting an objection to DOE’s attorney, addressed to: REDACTED NYC Law Department REDACTED Street, Room REDACTED New York NY 10007 or via email at REDACTED. Please reference the LV v. DOE lawsuit (Case No. 03-9917) when writing. An Objection Form accompanies this Notice, though no written objection will be rejected if it is not submitted on this form. If you object, no records containing you and your child’s personally identifiable information or other FERPA-protected information will be provided to the Special Master, although nominal and incidental disclosure of your child’s name may occur. Any objections must be received by December 3, 2021 or for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order. IHO

If. you would like more information about this notice, please contact the attorneys for plaintiffs, Redacted, of Redacted. At Redacted. IHO

OBJECTION TO DISCLOSURE OF RECORDS LV v. DOE, 03 Civ. 9917 (SDNY)

If you agree to the release of information about your child to the Special Master appointed in L.V. v. DOE, you do not need to complete this form.

If you object to the release of information about your child to the Special Master appointed in L.V. v. DOE, please compete and return this form to:

REDACTED

REDACTED

REDACTED

or via email at LVObjection@law.nyc.gov

Child’s name:

Name:

Address: Impartial Hearing Order Case # (if known): Date of Order (if known): If you object to the release of your confidential information, please check the line below: ______ I do not agree to have my confidential records disclosed to the Special Master in L.V. v. DOE.

Date Please sign here

If you object to the release of information, your objection must be received by December 3, 2021 or, for impartial hearing orders issued after November 12, 2021, within 3 weeks of the issuance of the impartial hearing order. * * * If you do not notify the DOE of your objections to the documents being released, you child’s information will be provided to the Special Master appointed in LV v. DOE, 99 Civ. 9917 (SDNY) and/or consultants and employees of Thru-Ed. The information will remain confidential and the disclosure of this information will not affect any of your rights to seek special education services for your child. https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings ‫ﻟﻼطﻼع ﻋﻠﻰ ھﺬا‬ ‫ ﻗﻢُ ﺑﺰﯾﺎرة اﻟﻤﻮﻗﻊ اﻹﻟﻜﺘﺮوﻧﻲ‬،‫اﻟﻤﺴﺘﻨﺪ ﺑﺎﻟﻠﻐﺔ اﻟﻌﺮﺑﯿﺔ‬ YgÄ sÄOxÄ tÄzÄè ná^lá, https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings ná^Ép 若要以中文查看，請上網到 https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings Pour consulter ce texte en français, allez sur https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings Pou wè tèks sa a an kreyòl ayisyen, ale sou https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings 본 문서를 한국어로 보시려면 다음 웹사이트를 이용하십시오: https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Для просмотра документа на русском языке посетите https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings Para ver este contenido en español, visite https://www.schools.nyc.gov/learning/specialeducation/help/impartial-hearings https://www.schools.nyc.gov/learning/special-education/help/impartial-hearings ‫اس ﮐﻮ اردو ﻣﯿﮟ‬ ‫دﯾﮑﮭﻨﮯ ﮐﮯ ﻟﯿﮯ ﭘﺮ ﺟﺎﺋﯿﮟ‬

Footnotes

[1] Tr. references the page number from the 10.13.23 hearing.

[2] IHO Exhibit 2 (DOE closing brief) and Exhibit 3 (Parent’s closing brief).

[3] Erroneously identified as a 2019 report by Parent’s representative in Parent’s Exhibit list.

[4] Witness #1 started working with the Student in September 22 and the Student did not receive SLT during the summer of 2023.

[5] Later in her testimony Witness # 3 stated she only supervises one of the 3 therapists. Two of the therapists do not require supervision (Tr. 112).

[6] NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[13] Gagliardo, 489 F.3d at 112

[14] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

[15] Frank G., 459 F.3d at 364-65.

[16] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.

[17] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[18] I note that Witness #3 erroneously stated that the Student was not working on bathing/showering at the Private School (See Tr. 148 and Exhibit U-11).

[19] Frank G., 459 F.3d at 364.

[20] See Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 991]. Application of a Child with a Disability, Appeal No. 11-068.

[21] (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]).

[22] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)), Rowley, 458 U.S.176.t 189, 553 IDELR 656 (1982). The statute ensures an "appropriate” education, "not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted], Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). School districts are not required to "maximize” the potential of students with disabilities. Bd. of Educ. v. Rowley, 458 U.S. 176, at 189,199,553 IDELR 656 (1982); Grim, 346 F.3d at 379, Walczak, 142 F.3d at 132.

[23] See Application of a Child with a Disability, Appeal No 20-125.

[24] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)

[25] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).