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FINDINGS OF FACT AND DECISION
Case Number: 167469
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 17, 2017
January 9, 2018
March 13, 2018
May 11, 2018
Actual Record Closed Date: June 8, 2018
Hearing Officer: Leah Botwinik Almeleh, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2017
Law Offices of by, Esq. — Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 9, 2018
Law Offices of by, Esq. (via telephone) — Parents
District Representative (via telephone) — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 13, 2018
Law Offices of by, Esq. — Parents
Parents
Clinical Supervisor, (via telephone) — Parents
District Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2018
Law Offices of by, Esq. — Parents
District Representative — DOE
Procedural Context — DOE
On July 18, 2017 I was appointed to hear the matter of
- versus the New York City Department of Education (hereinafter “the Department”) pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. Section 1415 (f)(1). Thereafter, a pre-hearing conference was convened telephonically on August 9, 2017 for the purpose of developing a litigation calendar and, where possible, framing the issues. On August 17, 2017 a pendency hearing was held, and an Interim Order of Pendency issued by the undersigned that day. On November 2, 2017 the proceedings continued with a second conference call. On January 9, 2018, March 13, 2018 and May 11, 2018 hearings were held and the decision date duly extended.
On this last date, the parties were offered an opportunity to submit closing Memoranda of Law and, as a result thereof, the compliance date for issuing a decision in the above-referenced matter was duly extended to June 8, 2018. Specifically, the Parent asserts that the School District’s educational placement, as memorialized by the May 26, 2017 and June 28, 2017 IEPs stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for her child. Exhs. A. As a result thereof, she is seeking direct payment for 15 hours of SETSS services along with mandated speech and language therapy, counseling and occupational therapy. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.
It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and preparation of closing memoranda. At the commencement of the 2017-2018 school year, the student was years old. I note that is “a child with a disability” as that term is defined under the IDEA,[20] U.S.C. § 1400 et seq., and is classified with as “intellectually deficient” as that term is defined by
A list of persons in attendance and of evidence is appended hereto. The School District’s Case
No oral or documentary evidence was submitted by the Department. As a result, much of the Parent’s case is undisputed, although the Department’s representative indicated that, pursuant to Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]), the Department was not conceding prong one. The Parent’s Case testified on behalf of the Parent. is employed by , an agency which provides special education related services for children with disabilities. She is clinical supervisor and is sited in . Tr. at 41-42. As the clinical supervisor, is responsible for ensuring that services are implemented appropriately for each child and that the IEP goals are being met. She is additionally a liaison between school, the provider therapists and the Parent. testified that the child is presently receiving 15 hours of SETSS services, some of which are delivered at home and others are provided at school. All of SETSS providers possess master’s degrees in Special Education.
- . is currently in a mainstream students. Tr. at 62. The witness described
•
-
grade class which ranges from 25 to 32
as a very sweet child who “struggles
tremendously with all academic areas.” Although her social skills are stronger, these too are an area of weakness. Tr. at 47. is a very concrete thinker who does not grasp nuances. additionally exhibits “severe articulation issues” and has difficulty imitating sounds. The witness indicated that the child will . Tr. at 54. The child additionally exhibits “severe processing issues.” Tr. at 58. described a child whose gait was very off balance and whose fine motor skills “are very rough and way off.” Tr. at 57. The student began the school year with a mid-to upper
-- - grade
level in reading but is now reading at an upper to beginning grade level. Tr. at 69. Her math skills now fall at the end of grade to beginning of grade level. Tr. at 70.
The child receives no English instruction during the day, specifically in terms of language arts, reading or comprehension. Similarly, there is no math instruction. Tr. at
58-59. The core curriculum for at consists of sewing, current events, health, home economics, typing and . Tr. at 65-66. Although participates in these classes with her mainstream peers, materials and assignments are modified. Her grades reflect mastery of content areas, relative to her severe disabilities.
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The witness participated in the May 26, 2017 IEP meeting and noted at this time that definitely required 15 hours of pull-out SETSS. Tr. at 59. In the absence of these hours, noted that would be unable to meet needs. Tr. at 59-60. She testified that, . is unable to learn – is unable to learn academically in the classroom setting. First of all – she can’t learn in the classroom. It’s just too difficult for her.” Tr. at 52-53. Nevertheless, within the SETSS one-to-one setting, opined that can make progress academically and has done so. Since the beginning of the school year, the witness testified that the student’s reading and math skills have improved and
- . is now able to identify coins and make change. Because of the student’s severe deficits, testified that they are unable to address the student’s writing needs. Tr. at 60.
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The Parent additionally testified. She provided a brief history of , noting that her daughter began receiving services as early as infancy. Tr. at 78. . received early intervention, attended pre-school at and then attended a special education elementary education at In high school, . articulated into although a 12:1:1 District bilingual program had been recommended. Tr. at 78-81. Nevertheless, the Parent did, in fact, observe the recommended class and believed the students were too low functioning and “hyper” for her daughter. Tr. at 81-82.
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On June 28, 2017 a second IEP review was held. Although a self-contained special education class had previously been recommended for the Parent now sought speech services for her child. At that time, the child was evaluated, and speech services recommended. Tr. at 85-86. Although services were subsequently recommended, the Parent testified that has not received them.
The Department’s Position
The School District maintains that the May 26, 2017 and June 28, 2017 IEPS are valid and consistent with its mandate pursuant to both Educ. Law §4402(2)(a) and 8N.Y.C.R.R. §200.6 §(a)(1). Inherent within this position, the School District asserts that the IDEIA simply requires the School District to provide a free and appropriate public education (hereinafter referred to as a “FAPE”) and is not compelled to maximize or optimize the child's educational benefits. In view of the foregoing, the School District maintains that compliance with its IDEIA mandate is predicated upon the development of an educational program, which accurately reflects the results of evaluations designed to identify the child’s needs, and develops strategies and interventions directed at remediating these educational deficits. Its duty is fulfilled by the implementation of a plan “reasonably calculated to confer an educational benefit upon the child” beyond “mere trivial advancement” (Application of the XXX Central School District, Appeal No. 08-005, citing Cerra v. Pauling Cent. Sch. Dist, 427 F.3d 186, 192 [2d Cir.2005]). The Paren’s Position
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The Parent asserts that the School District stands in abrogation of its duty to provide with a free and appropriate public education for the 2010-2011 school year in violation of the IDEIA and Section 504 of the Rehabilitation Act. See 20 U.S.C. § 1412 (a)(1)(1997); 20 U.S.C. § 1401 (11)(1997). As such, counsel maintains that the IEPs generated on May 26, 2017 and June 28, 2017 reflect a number of substantive and procedural errors which, in aggregate and alone, compel nullification of the document. In furtherance thereof, counsel maintains that the Department’s failure to provide . with 15 hours of SETSS is a deprivation of due process rights. As a result, consistent with Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998), the Parent is seeking a declaratory judgment as to the need for 15 hours of SETSS services per week as well as for direct payment of such services to .
Legal Context
It is clear that the legislative intent of 20 US Code § l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible (20 U.S.C.Sx.1400 [d][1][A]; see Ms. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. 1401(11); 34 C.F.R. 300.340[a]; 8 N.Y.C.R.R. 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction. 20 U.S.C. 1414(d)(2)(A); 34 C.F.R. 300.342[a].
In furtherance thereof, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 [1982]). The recommended program must also be provided in the least restrictive environment (34 C.F.R. § 300.550[b]; 8 N.Y.C.R.R. 200.6[a][1]).
In determining the “reasonably calculated” standard, the IDEA does not require the best placement for a student, but rather one at which the student may make educational progress. Most recently, the Courts have reiterated the standards upon which the “reasonably calculated” standard of FAPE must be determined. "The requirement that each child be afforded a FAPE does not guarantee that the district provide everything that might be thought desirable by loving parents" ( B.B. and A.P. o/b/o D.P. vs. the NYC Dept. of Ed. 11-CV-2141 (WFK) (MDG) (Jan. 6, 2012), citing, Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d at 567; D.B. ex rel. K.B. v. New York City Dep't of Educ., No. 10-cv-6183, 2011 WL 4916435 [S.D.N.Y. Oct. 12, 2011][Sweet, J], quoting Walczak, 142 F.3d at 132. Nor must the IEP furnish "every special service necessary to maximize each handicapped child's potential." Rowley, supra at 199.
Rather, the IEP must provide a "basic floor of opportunity consisting of services that are individually designed to provide educational benefit to a child with a disability" (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); see also Carlisle Area Sch. v. Scott P., 62 F.3d 520, 533-34). Indeed, a school district "fulfills its substantive obligations under the IDEA if it provides an IEP that is likely to produce progress, not regression, and if the IEP affords the student with an opportunity greater than mere trivial advancement" (A.H. ex rel. JH v. New York City Dep't of Educ., 394 Fed. Appx. 718, 721 [2d Cir. 2010]).
Courts have held, furthermore, that the inquiry into whether a particular IEP is "reasonably calculated" to confer a meaningful educational benefit on a particular student must be made prospectively. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (declining to rule whether it is error to consider retrospective evidence, but noting that the First, Third, and Ninth Circuits, as well as district courts within the Second Circuit, had so held); J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 636 n.26 (S.D.N.Y. 2011) (discussing lack of Second Circuit precedent requiring only prospective review, but ultimately conducting review limited to information known at time IEP was crafted to reach "the most equitable result"); J.R. ex rel. S.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F. Supp. 2d 386, 395 (S.D.N.Y.
2004) (courts must "consider the propriety of the IEP with respect to the likelihood that it would benefit [the child] at the time it was devised"). Additionally, the IDEA provides that a school district must include and involve the parents of the disabled child in the development of that child's "educational placement." 20 U.S.C. § 1414(e). Parents, however, may only have input in the process; they do not wield "veto" power over a CSE's school choice. See T.Y. ex rel. T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009]).
Finally, while both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 U.S. at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 U.S. at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). Having said this, procedural flaws alone do not automatically translate into a denial of FAPE. A violation of FAPE may only be determined when these procedural inadequacies, individually or cumulatively, result in the loss of educational opportunity, or seriously infringe on a parent's participation in the creation or formulation of the IEP (Shapiro v. Paradise Valley Unified Sch. Dist., 317 F.3d 1072, 1079 [9th Cir. 2003]; Knable v. Bexley City Sch. Dist., 238 F.3d 755, 766 [6th Cir. 2001], cert. denied 533 US 950 [2001]; Heather S. v. State of Wisconsin, 125 F.3d 1045, 1059 [7th Cir. 1997]; W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23, 960 F.2d 1479, 1484 [9th Cir. 1992]; Burke Co. Bd. of Educ. v. Denton, 895 F.2d 973, 982 [4th Cir. 1990]; W.A. v. Pascarella, 153 F.Supp. 2d 144, 153 [D.Conn. 2001]; see Arlington Cent. Sch. Dist. v D.K., 2002 WL 31521158 [S.D.N.Y Nov. 14, 2002]; see also J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69-70 [2d Cir. 2000] [relief is warranted only if the procedural violation affected the student's right to a FAPE]).
Discussion
There is really only one issue at bar. The issue concerns the child’s right to receive 15 hours of 1:1 SETSS services on a weekly basis. Although the Department did not put on a direct case, neither did it concede prong one as to the appropriateness of . In furtherance thereof, the Department offered no testimony regarding the appropriateness of the IEPs themselves. However, even if the IEP were a perfectly drafted document, there was no evidence, testimonial or evidentiary, which addressed the capability of the proposed placement to implement the IEP. Under these circumstances, I have no alternative but to accept the unrebutted testimony of the Parent consistent with Endrew F., a minor by and through his parents et al, v. Douglass Cty Sch. Dist, 580 U.S. _2017; Docket 15-827; D.C. ex rel. E.B., supra. While an IEP may exist in pristine format, it is not merely a theoretical document. It is only as good as its ability to be implemented. In this matter, the Department simply has not met its evidentiary burden. While the Department did not meet it burden with regard to prong one of Burlington, supra., neither did it actively dispute the appropriateness of . Nevertheless, based upon the Parent’s direct case, it is clear that is largely inappropriate for the child. is “educated” in a mainstream
• grade class, although she is reading, at
- best, at a level. Tr. at 69. Similarly, while the child is placed in an classroom, her math skills are at a to level; the student is first developing competency with coin identification and making change. The student receives no English language arts or math instruction through . Rather, the core curriculum for consists of sewing, current events, health, home economics, typing and . Tr. at 65-66. The school is large, and it is unclear whether offers a bilingual program.
Approximately 25 to 32 students are enrolled in its mainstream classes and there are apparently no special education classes available. There was no testimony to suggest that any of these classes are enriched by supplemental teaching staff during the day. Other than there was no testimony regarding the availability of special education personnel within the classroom. Although testified that curriculum is modified, it is unclear how this is done in a meaningful manner, given the high enrollment in classes.
testified that is unable to learn - is unable to learn academically in the classroom setting. First of all – she can’t learn in the classroom. It’s just too difficult for her.” Tr. at 52-53. In fact, even with 15 hours of SETSS, testified that was unable to address all of deficits. Specifically, and at the very least, is unable to address writing skills as a result of the student’s severe intellectual disability. Tr. at 59-60. By the Parent’s own admission, “has difficulty speaking like a of her age. She has difficulty expressing herself using the correct words and proper sentence structure.” Exh. G. This opinion was underscored by testimony and her support for additional speech therapy sessions. Although the Parent indicated that her daughter required a twelve-month program, it is unclear whether this is even available at although it was incorporated into the IEP as a recommendation.
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Given this scenario, it is clear that is not an appropriate educational setting for Nevertheless, the Department marginally addressed the Parent’s prong two case.
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]). Clearly, no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement. While the Department has not conceded the appropriateness of , neither has it proven it inappropriateness. appropriateness was marginally established by the Parent’s witness.
Given this scenario, the matter at bar is best addressed through equitable considerations. It is clear that the Parent cooperated with the Department’s placement division and visited the recommended site. Exh. H., I. She expressed her concerns about the Department’s placement in a timely manner and provided due and proper notice of same. Exh. G. Moreover, cooperated with the Department’s placement division and visited the recommended placement as requested.
However, the Parent has continued an educational placement which is patently inappropriate for her daughter. Aware of inability to provide the special education services her daughter requires, she has nevertheless continued enrollment at this placement. Her reliance upon SETSS to provide the education that does not is inconsistent with the purpose of SETSS services. SETSS is designed and intended to supplement an education in the most basic and fundamental skills of reading, writing and math. SETSS was not designed to function as the child’s primary source of educational benefit. It is not meant to constitute the entirety of the child’s education where the Parent’s school does not offer these basic studies.
For this reason, I believe the Parent’s actions militate against a complete award in her favor. Conclusion
The Parents’ request for relief is granted in part for the 2017-2018 school year but must be reduced based upon equitable considerations.
At the outset, I note that no attendance records were submitted on behalf of and it is unclear how many hours of service were actually received. Moreover, I note that- the affidavit of , on behalf of includes agency costs for BCBA supervision. does not receive applied behavioral analysis services and should not be billed for this supervision. Finally, I find that there is inadequate proof regarding the “going” rate of reimbursement for bilingual providers. While has submitted an Affidavit stating, “Based on my knowledge, the rate of $135.00 per hour for 1:1 SETSS services is the prevailing rate for comparable agencies providing bilingual SETSS services,” the affidavit is silent regarding the basis for her knowledge. In fact, it does not even include Ms. title and relationship with Exh. N. Wherefore, it is hereby ordered that:
1. Within 30 days of the date of this Order, a complete speech and language assessment shall be performed, if not already completed.
2. As of the date of this Order, the Department shall make direct payment to in the amount of $33,000.00, representing 300 hours of service (ten hours per week for 30 weeks) at a rate of $110.00 per hour. Providers , shall receive payment as set forth in affidavit. shall receive the remainder. Any additional hours accrued for the 2017-2018 school year shall be paid at the rate set forth above and distributed between provider and agency as set forth above.
3. Going forward, the child shall be entitled to ten hours of bilingual SETSS per week.
4. The child shall continue to receive bilingual speech-language therapy (3 x 30 x 1) on a weekly basis.
5. The child shall continue to receive bilingual individual and small group counseling (1 x 30 x 1; 1 x 30 x 3) on a weekly basis.
6. Within 30 days of the date of this Order, the Department shall conduct an occupational therapy evaluation.
Dated: June 12, 2018
Leah Botwinik Almeleh, Esq. gc
LEAH BOTWINIK ALMELEH, ESQ.
Impartial Hearing Officer
LBA:gc
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO RECORD
PARENT
A Impartial Hearing Request, 7/10/17, four pages B Findings of Fact and Decision, 12/30/16, 12 pages C Amended Hearing Request, 3/6/2017, four pages D Special Education Progress Report, 1/7/18, nine pages E IEP, 5/26/17, 17 pages F IEP, 6/28/17, 17 pages G Parent Letter to CSE, 5/28/17, two pages H Parent Letter to CSE, 6/20/17, four pages I Parent Letter to the CSE, 08/23/17, three pages J Provider Licenses, undated, five pages K Affidavit of Services, 3/6/2018, one page L Student Progress Report, 5/24/17, three pages M Student Progress Report, 4 5/24/17, three pages N Affidavit, 3/20/18, two pages
Footnotes
[20] U.S.C. § 1401(a)(1).