New York City Department of Education, Impartial Hearing Decision

SECOND AMENDED FINDINGS OF FACT AND DECISION

Case Number: 170513

Student’s Name:

District:

Hearing Requested By: Parent

Date of Hearing: January 17, 2018

June 20, 2018

August 1, 2018

October 16, 2018

January 18, 2019

February 13, 2019

Actual Record Closed Date: March 4, 2019

Hearing Officer: Suzanne Carter, Esq. Hearing Officer’s Second

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 17, 2018

Parent Advocate — Student

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2018

Parent Advocate — Student

Parents

ESQ., Attorney — DOE

CPSE Administrator (Via Telephone) — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2018

Parent Advocate — Student

Parents

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 16, 2018

Parent Advocate — Student

Advocate — Student

ESQ., Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 18, 2019

Advocate — Student

Parent (Via Telephone) — Student

ESQ., District Representative — DOE

Hearing Officer’s Second — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 13, 2019

Advocate — Student

Parents

Program Director — Student

ESQ., Attorney — DOE

Hearing Officer’s Second — DOE

INTROD CTION

On December 27, 2017 after another hearing officer recused, I was designated as impartial hearing officer for this matter pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of (the Student). A prehearing conference was conducted on January 10, 2018. Impartial hearings occurred on January 17, June 20, August 1, October 16, 2018; and, January 18 and February 13, 2019. The January 17, 2018 hearing was held solely to address transportation where

Exhibits A-D, Department Exhibit 1, and IHO Exhibit I were entered. An interim order issued as IHO Exhibit II. Parent’s exhibits A-M, and O were admitted on June 20, 2018 along with Department exhibits 1-19. A second interim order issued on July 10, 2018 as IHO Exhibit III. The record was closed on March 4, 2019.

BACKGRO ND

is a preschooler with a disability and he was recommended to attend a special class with a 12:1:2 student to staff ratio for the 2017-2018 school year. The Parent alleges the Department of Education failed to develop an IEP that was reasonably calculated to confer educational benefit due to substantive and procedural flaws in the

IEP process.

The Department Denied a FAPE to the Student

for the 2017/18 School Year

In March 2017, the Supreme Court of the United States reaffirmed that “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).

This exercise is fact-intensive. Id. It requires school officials with the prerequisite expertise and input from the parent. Id. “The IEP must aim to enable the child to make progress.” Id. “A focus on the particular child is at the core of the IDEA. The instruction offered must be “spec ally designed” to meet a child’s “un que needs” through an

“[ ]nd v dual zed education program.” Id. (citation omitted) (emphasis added). An IEP is not a form document with checkboxes. Id. It is constructed only after careful Hearing Officer’s Second consid ration of th child’s pr s nt l v ls of achi v m nt, disability, and pot ntial for growth. Id. (citation omitted).

Generally, in the impartial hearing concerning whether a child was offered a free and appropriate education (FAPE), the district “shall have the burden of proof, including the burden of persuasion and burden of production . . . .” NY Educ. Law § 4404(c)(1).

Courts determining whether an IEP confers FAPE must “make a two-part inquiry that is, first, procedural, and second, substantive.” R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012) “At the first step, courts examine whether there were procedural violations of the IDEA, namely, whether the state has complied with the procedures set forth in the IDEA.” C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 78 (2d Cir. 2014) (citing R.E., 694 F.2d at 190). The second step requires courts to determine whether the IEP was “substantively adequate, namely, whether it was reasonably calculated to enable the child to receive educational benefit.” 694 F.2d at 190.

Therefore, the IDEA and its implementing regulations requ re a CSE, in developing a child’s IEP, to consider the most recent evaluative data of the child. See 20 U.S.C. §

1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii). The burden rests with the school district to demonstrate which evaluative materials were reviewed during the CSE meeting to develop the IEP. L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95,110 (2d Cir. 2016); see

W.S. v. City Sch. Dist., 188 F. Supp. 3d 293 (S.D.N.Y. 2016) (reviewing earlier IEPs and other materials to develop IEP). “(T)he goals of the IDEA envision a collaborative process in developing a uniquely suitable educational placement for each child. E.H. v NY City Dept. of Educ., 164 F Supp 3d 539, 551 (SDNY 2016). The following substantive flaws eviscerated the collaborative process needed to develop a suitable educational plan for the Student.

Failure to evaluate

The medical history of the student in this case is significant for serious medical conditions related to birth at 29 weeks. Ex. 5. Children born about prematurely are more likely to struggle in school than children born full term. Their neurodevelopment does not have a fixed trajectory and must be considered in special education planning. An

Hearing Officer’s Second appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs.34 C.F.R. §300.320[a][l ]; 8 NYCRR

200.4[d][2J[i]; Tarlowe v. N.Y.C. Bd. of Educ., 2008 U.S. Dist. LEXIS 52704 (S.D.N.Y.

July 3, 2008); establishes annual goals related to those needs 34 C.F.R.§ 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]; and, provides for the use of appropriate special education services 34 C.F.R. § 300.320[a][4]; 8 NYCRR200.4[d][2J[v]. Therefore, a district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status. 20 U.S.C.

§ 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii].

It should also be noted that a district is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program, but may rely on appropriate privately obtained evaluations. M.H. v. N.Y.C. Dep’t of Educ., 2011 U.S. Dist. LEXIS 17306, at *29 (S.D.N.Y. Feb. 16, 2011). The district may also rely on information obtained from the student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP. See G.W. v. Rye City Sch.

Dist., 2013 U.S. Dist. LEXIS 45918 (S.D.N.Y. Mar. 29, 2013) see also Application of a -- --- ----------- Student with a Disability, Appeal No. 12-165.

Herein, the CPSE did not update its evaluations and ignored the December 2016 progress report. Instead, for the June 2017 meeting when the Student was months old, the CPSE relied upon formal evaluations conducted in December 2015 when the Student was almost 3 years old chronologically. Ex. 5-8. However, his functional level was described as “extremely low”, “low”, and “extremely poor” across all domains of childhood. Ex. 5-8,16. The only report completed near the time of the meeting was the student progress report that was 6 months old. Ex. 17. He was described as presenting with “significant weaknesses in all areas of learning which impact his ability to succeed in academic/social tasks.” Id. The evaluator recommended an increase in SEIT services to prevent delays and an intensive approach to address his goals to master skills for him to become more independent in the classroom. Id. Instead, the CPSE eliminated vision services1 and SEIT services were eliminated beginning September 2017.

The Parent did not provide an ophthalmological report. Tr. 69However, the CPSE did not evaluate the Hearing Officer’s Second testified, “We received progress reports from his providers. We didn’t ask for new evaluations.” Tr. 71. The progress report recommended continuation of SEIT services. Ex. 17. However, there was no explanation for discontinuation of the service given the following testimony. The Student displayed “gross motor and fine motor delays … expressive language delays … social-emotional behavior and attentive span deficits . . . delays in all these areas.” Tr. 59. “He still needed remediation.” Id.

According to , the Student attended a playgroup. Tr. 58. That was inaccurate because the Student was also enrolled in a home-based Head Start program for children with chronic conditions. Ex. 17. She was also unaware the Student was already receiving home-based speech therapy but believed the service would be inappropriate when questioned by the IHO. Ex. 17; Tr. 73. Lastly, the CPSE also failed to consider whether assistive technology would be appropriate because it was not “mentioned in any reports.” Tr. 77.

A hearing officer has broad authority during the impartial hearing process. See, e.g., 34 C.F.R. § 300.502(d) (ordering an independent educational evaluation “as part of the hearing”). Therefore, because of the failure to evaluate, the IHO issued an order for independent evaluations in response to the Parent’s general prayer for relief in the request for hearing. IHO Ex. II.

CPSE meeting members

The CPSE must include: not less than one special education teacher of the child, or, if appropriate, not less than one special education provider of the child. the parent of the child. 8 NYCRR- 200.3 (a)(2)(iii). No such person was present at the June 2017 meeting. Tr. 57, 71. A report from the SEIT provider was reviewed but it predated the meeting by six months. Ex. 17

According to , was receiving SEIT in a play group.

“That’s not a program. That was support services in a playgroup.” Tr. 76. Her definition of a program was “is a place where a child can go to receive services, such as at school.”

Id. Nothing in the regulations mandates that special education services are only effective

Stud nt b for r moving this s rvic . Id. Hearing Officer’s Second if provided in a school. Fruitful discussion did not and could not take place at the June 2017 meeting because the SEIT did not participate.

is an Appropriate Placement

The standards for determining whether a private school placement is “appropriate” under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement. The

Second Circuit has explained that “[s]ubject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo v. Arlington Central Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007) (citation omitted). “The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits.” Id. (citation omitted). “A private placement meeting this standard is one that is likely to produce progress, not regression.” Id. (citation omitted). “Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” and “[a]n appropriate private placement need not meet state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006) (citation omitted). Moreover, “a private placement need not provide certified special education teachers or an IEP for the disabled student,” and “parents may not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted). “[T]he test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Id. (citation omitted). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement . . . provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (citation omitted).

A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. v. R.C. & K., No. 12

CV 1227 (VB), 2013 U.S. Dist. LEXIS 21194, at *27 (S.D.N.Y. Feb. 4, 2013) (noting Hearing Officer’s Second that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate); see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App’x

76, 78 (2d Cir. Mar. 29, 2013); D.D-S. v. Southold Union Free Sch. Dist., 506 Fed.

App’x 80, 81 (2d Cir. Dec. 26, 2012); see also Frank G., 459 F.3d at 364). However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115, (citations omitted) (1st Cir. 2002); see T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016]).

program director testified about the Developmental, Individual-Difference, Relationship-Based (DIR) methodology used at to work with “children with autism spectrum disorders, but also children not with ASD diagnoses, but with presenting with those same core deficits in relating and communicating.” Tr. 160. The school has certified special education teachers and teaching assistants with bachelor’s degrees. Tr. 161, 166-67. The Student is non-ambulatory and his right side is weaker than his left side. Id. Because of his neurodevelopmental delays, the school uses an integrated transdisciplinary approach with OT and PT and speech, and the classroom to “move him up the developmental ladder.”

Tr. 165, 173-74. He is in a class with 6 students and 9 adults. Tr. 170.

The Student has made progress “using his body much more effectively.” Tr. 172.

His stamina and endurance have increased. Id. He now answers questions during reading and his focus and attention has increased. Id.

The Parent testified the Student’s vocabulary grew to at least 500 words, he can count to 120, and he knows numbers, colors, shapes, seasons, waters, and textures. Tr.

116. His physical strength improved to where he now holds a spoon. Id. He can stand and “even walk a little bit by putting bearing weight on his right leg and also by bearing weight on his right arm to continue to -- to move to the left.” Id.

The Equities Favor Tuition Payment for

The final criterion for a reimbursement award or prospective funding is that the parents’ claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. M.C. v. Voluntown Bd. of Educ., 226 Hearing Officer’s Second F.3d 60, 68 (2d Cir. 2000); such considerations “include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters.” Wolfe v. Taconic Hills Cent. Sch. Dist., 167

F.Supp.2d 530, 533 (N.D.N.Y. 2001). In the absence of evidence demonstrating that parents failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. See

M.V. v. Shenendehowa Cent. Sch. Dist., No. 1:06-CV-0571 (LEK/RFT), 2008 U.S. Dist.

LEXIS 182, at *11 (N.D.N.Y. Jan. 2, 2008) (“If a student is not provided with a FAPE and the private placement determined by the parents is deemed appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” “) (citations omitted). When it has been determined that a proposed IEP is inadequate and the disabled child lacks the financial means to meet the cost of private-school tuition, an award directing a district to prospectively place a student in an appropriate, but non-approved school may be proper. See Connors v. Mills, 34 F.Supp.2d 795, 802, 805-06 (N.D.N.Y. Sept. 24, 1998).

The Parent cooperated at every moment with the CPSE. Tr. 109-11. Furthermore, parents do not have to “try out” an inappropriate placement before challenging the IEP.

See Frank G., 459 F3d at 372 (no requirement for parents “to jeopardize their child’s health and education in this manner” to qualify for the right to seek tuition reimbursement). Therefore, tuition funding is warranted.

ORDER

I hereby order that:

1. The Department shall pay and/or reimburse Parent for attendance from September 2017 to June 30, 2018.

2. The Student is entitled to transportation to .

3. The Student is entitled to an independent neuropsychological evaluation at a cost not to exceed $5000.

4. The Student is entitled to an independent FBA at a cost not exceed $1,200 and a BIP not to exceed $450.

Hearing Officer’s Second

5. The Student is entitled to an independent speech language evaluation at a cost not to exceed $1,500.

6. The Student is entitled to an independent physical therapy evaluation at a cost not to exceed $1,500.

7. The Student is entitled to an independent occupational therapy evaluation at a cost not to exceed $1,500.

Original Decision Rendered: March 18, 2019 Dated: April 12, 2019

SUZANNE M. CARTER, ESQ

Impartial Hearing Officer

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. Hearing Officer’s Second

DOCUMENTATION ENTERED INTO THE RECORD

STUDENT

A Impartial hearing request, 10/23/17, five pages

B Program description, unidentified date, eight pages

C Statement to the hearing officer, 1/16/18, three pages

D Withdrawn

E Authorization of IEP change, 6/27/17, two pages

F Authorization of IEP change, 9/1/17, one page

G Withdrawn

H Ten-day notice, 6/14/17, two pages

I Letter from , 8/10/17, one page

J Class schedule, School year 2017/2018, one page

K Interdisciplinary report of progress, December 2017, ten pages

L School Affidavit, 5/15/18, one page

M Enrollment contract, 6/6/17, six pages

N Withdrawn

O Parent proof of payments, 2017/2018, one page

DEPARTMENT OF EDUCATION

1 IEP with attendance, 6/2/17, 18 pages

2 Preschool acceptance letter, 6/26/17, one page

3 Authorization of the IEP, 6/27/17, one page

4 Final notice of recommendation, 6/27/17, one page

5 Social history, 12/3/15, two pages

6 Psychological evaluation of behavioral observations, 12/3/15, six pages

7 Speech language evaluation, 12/6/15, four pages

8 Physical therapy evaluation, 12/8/15, three pages

9 Occupational therapy evaluation, 12/6/15, four pages

10 Preschool student evaluation summer report, unidentified date, two pages

11 Home language survey, 12/3/15, one page

12 Medical documentation, 12/3/15, two pages

Hearing Officer’s Second

13 Conference result form, December 2017/2015, one page

14 Meeting notice, 6/5/17, two pages

15 Meeting notice, 5/2/17, two pages

16 Child outcomes summary form, 12/29/15, 12 pages

17 Student progress report, 12/19/16, seven pages

18 Transportation IEP revision documents, 9/1/17, four pages

19 Emails, various, four Pages

IHO Exhibits

I. description 1/17/18 4 pgs

II. Interim Order 1/24/18 2 pgs

III. Interim Order 7/10/18 1 pg