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FINDINGS OF FACT AND DECISION
Case Number: 172068
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 29, 2018
Actual Record Closed Date: March 11, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 29, 2018
For the Student:
Me. ESQ., Attorney
Parent (via telephone)
social Worker
For the Department of Education:
District Representative
Teacher, (via telephone)
I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated January 17, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2015/16 through 2018/19 school years (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR 8§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(4)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“THO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and as “Ex.” confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5G)(3)(v), (vil), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(4)(5). A party may seek a specific extension of time of the 45-day timeline, which the THO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5G)(5). The decision of the THO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on January 17, 2018. See 8 NYCRR § 200.5(j)(3)(G). A pre-hearing conference with the parties was held on October 17, 2018 to clarify the hearing issues and set a date for the impartial hearing (R. 1-6). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of this matter was thereafter held on November 29, 2018.7 Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(G)(5)(v).
Ii. FACTUAL BACKGROUND
At the time of the amended due process complaint, the student was 3’ years old and has been diagnosed with an autism spectrum disorder (“ASD”). For the 2018/19 school year, the student attends the tenth grade at ae 2 school. The student's current eligibility for special education and related services as a student with autism is not in dispute in this hearing (R. 18; Ex. P-A). See 8 NYCRR § 200.1(zz)(1).7
The student is that impede his . He was diagnosed with an by the . The student received through the DOE’s Committee on The student is currently placed in a special class and receives related services of occupational therapy, physical therapy and speech and language therapy. The student participates in the New York Alternative Assessment, which is intended to ensure skill acquisition needed for positive adult outcomes across a variety of settings, including
According to the due process complaint, the student functions at a (R. 19; Ex. P-A at 1-2).
The student was most recently evaluated by the DOE on October 18, 2017. He was assessed using of the The student achieved a , which was significantly below expected level for his age. During the past four academic years, the student’s progress has across subject areas as measured by the (Ex. P-A at 2).
In the summer of 2016, the parent attended mediation with the DOE to request a compliance date were granted (R. 75-76; Exs. IHO-II - IHO-XI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(4)(5).
(4) of nonpublic school recommendation and a one-to-one paraprofessional to assist the student with toileting, as he was arriving home from school in soiled clothes. The parent was informed by staff at that the school could not and the parent’s request for a paraprofessional was denied. The outcome of the mediation stated that the parent would be provided parenting classes twice per month, which was never offered (Exs. P-A at 2, P-D).
The reportedly convened on October 26, 2016 to develop an JEP for the student. There was no indication on the IEP that the considered a specialized non-public school despite the parent’s request for such a placement in light of the student’s declining performance. The parent also requested a one-to-one paraprofessional to . Although the noted the student and in the community (Ex. P-A at 2-3).
The reportedly reconvened on October 23, 2017 to develop an IEP for the student. The parent again requested a one-to-one paraprofessional to assist the The parent submitted a prescription from the student’s pediatrician recommending a paraprofessional for help with daily activities at school, such as . The parent’s request was noted on the IEP, but her request for a toileting paraprofessional was denied (Exs. P-A at 3, P-B). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE has offered the student a FAPE for the disputed school years.
B. The Parents
The DOE has denied the student a FAPE for the 2015/16, 2016/17, 2017/18 and this subdivision. A student who manifests the characteristics of autism could be diagnosed as having autism if the criteria of this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).[3] 2018/19 school years. The should be directed to add a one-to-one health/toileting paraprofessional to the student’s IEP and ASD-focused parent counseling and training. The DOE should be directed to defer the student’s program to its Central Based Support Team (“CBST’’) for a nonpublic school placement (R. 52-54; Exs. P-A, IHO-I).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”’) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[4]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 US. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, MH., 685 F.3d at 245; 4.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(i1); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)(i1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an
1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C_F.R. § 300.17. TEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch, Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and .. . affords the student with an opportunity greater than mere ‘trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The JEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)G), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1);[8] 8 NYCRR § 200.4(d)(2)G); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)G)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Proposed Public Programs
At the hearing, the DOE failed to offer any documentary evidence that it developed appropriate IEPs for the student, or otherwise offered the student a FAPE, for the disputed school years. According to the due process complaint, the student’s academic performance from year to year was measured primarily using the assessment (R. 29-30; Exs. P-A, IHO-I). However, as assessments were not included in the hearing record, I cannot evaluate the sufficiency of those assessments nor reach any conclusions about the student’s progress from year-to-year in the absence of the documents themselves. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 12 (SRO Feb. 25, 2014). Without the inclusion of the student’s IEPs or assessments in the hearing record, I am precluded from a meaningful review of the IEPs’ descriptions of the student’s academic, functional, and management needs or the appropriateness of the IEP annual goals developed to address those needs.
Alternately, while the DOE offered testimony of the student’s special education teacher for the proposition that the student had made progress in the recommended , as the teacher’s opinion was largely based on the in the classroom and his reported happiness in the program (R. 26-29, 36-37), I have attributed little weight to that testimony. Given the above deficiencies with the DOE’s presentation of the information available to the , I decline to simply presume that the disputed IEPs offered the student a FAPE. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 15-001 at 13 (SRO Feb. 25, 2014). Accordingly, I find that the DOE has failed to meet its burden of proof as to the relative merits of its recommended programs for the student.
C. Referral for Nonpublic School Placement
In the due process complaint, the parent seeks, as relief, the student’s deferral to the for placement in a State-approved nonpublic school (Exs. P-A at 4, IHO-I at 4).
A school district is not obligated to consider removal from the public school to a nonpublic placement if it is able to provide the student with an appropriate educational program within the public education system. See T.G. v. New York City Dep't of Educ., 2013 WL 5178300, at *19 (S.D.N.Y. Sept. 16, 2013); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 (S.D.N.Y. Mar. 19, 2013); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) ("IDEA views private school as a last resort"); see also S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N.Y. 2009); Patskin, 583 F. Supp. 2d at 430-31; 8 NYCRR § 200.6(G)(1)(ii1) (State funding for private schools is only available if the determines that the student cannot be appropriately educated in a public facility). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child." 7.G., 2013 WL 5178300 at *19, quoting W.S., 454 F. Supp. 2d at 138. , a forensic social worker employed by ; offered credible testimony at the impartial hearing that the student, who after several years of instruction in a program still functions in , would derive meaningful benefit from ABA-based instruction in a nonpublic school setting (R. 63; Exs. P-A at 2, THO-I at 2). The will therefore be directed to defer the student’s program to the DOE’s for consideration of a nonpublic school placement.
D. One-to-One Health/Toileting Paraprofessional
In the due process complaint, the parent seeks, as relief, the provision of a paraprofessional while the student is awaiting placement at a nonpublic school and after his enrollment (Exs. P-A at 4, IHO-I at 4).
State guidance issued in January 2012 describes the considerations for determining if a student requires a one-to-one aide, as well as the roles and responsibilities of a one-to-one aide. See “Guidelines for Determining a Student with a Disability's Need for a One-to-One Aide," at 1-5 (Office of Special Educ. Mem. Jan. 2012). In pertinent part, the memorandum indicates that the decision to recommend an individual aide for a student must weigh factors that include, but are not limited to, the student's individual needs. See id. at 2-3.
In October 2017, the student’s treating physical wrote a prescription for the student’s receipt of paraprofessional services to help (Ex. P-B). offered credible testimony at the hearing that the student needs a one-to-one paraprofessional to limit his (R. 62). While instances of the reportedly declined with the introduction of a (R. 24-25, 42-44, 49, 62). The will be directed to add a _ one-to-one paraprofessional to the student’s IEP.
E. Parent Counseling & Training
In the due process complaint, the parent seeks, as relief, the provision of ASD-focused parenting classes at public expense (Exs. P-A at 4, IHO-I at 4).
State regulations require that an IEP indicate the extent to which parent counseling and training will be provided to parents, when appropriate. See 8 NYCRR § 200.4(d)(2)(v)(b)(5). State regulations further provide for the provision of parent counseling and training for the purpose of enabling parents of students with autism to perform appropriate follow-up intervention activities at home. See 8 NYCRR § 200.13(d). Parent counseling and training is defined as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's [TEP].". 8 NYCRR § 200.1(kk); see also 34 C.F.R. § 300.34(c)(8).
As no JEPs were offered for entry into the hearing record, there was no evidence submitted of the having offering this mandated service for the student, who is diagnosed with autism (Exs. P-A at 1, IHO-I at 1). See 8 NYCRR § 200.13(d). On the contrary, the hearing record reflects that in June 2016, the DOE agreed in a Special Education Mediation Agreement to provide the parent with parent training classes, twice monthly, but ultimately failed to provide the parent with that service (Exs. P-A at 2, P-D at 3, IHO-I at 2). While the student’s teacher testified that P.S. J at{j distributes flyers about workshops for parents (R. 39), I find that that practice is an inadequate substitute for State-mandated parent counseling and training for parents of students with autism. The will be directed to add parent counseling and training to the student’s IEP.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
ITIS
HEREBY ORDERED THAT:
The parents’ claim that the student was denied a free appropriate public education (FAPE) for the 2015/16, 2016/17, 2017/18 and 2018/19 school years is SUSTAINED; and Within thirty (30) days of the date of this Order, the shall reconvene to: (1) defer the student’s program to the DOE’s CBST for consideration of a nonpublic school placement; (2) add a one-to-one health/toileting paraprofessional to the student’s IEP; and (3) add parent counseling and training to the student’s IEP. Dated: March 28, 2019 /s/ Jeffrey J. Schiro, Esq, gc JEFFREY J. SCHIRO, ESQ. Impartial Hearing Officer JSS:ge
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 THE RECORD
PARENTS
A. Amended Due Process Complaint Notice/Impartial Hearing Request, 9/24/18, 4 pgs.
B. Prescription for Paraprofessional, 10/16/17, 1 pg.
C. Signed Subpoena, 11/24/18, 1 pg.
D. Special Education Mediation Agreement, 6/12/16, 4 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 1/17/18, 5 pgs.
I. Confirmation of Extension, 4/2/18, 1 pg.
III. Confirmation of Extension, 5/2/18, 1 pg.
IV. Confirmation of Extension, 6/1/18, 1 pg.
V. Confirmation of Extension, 6/21/18, 1 pg.
VI. Confirmation of Extension, 8/1/18, 1 pg.
VIL. Confirmation of Extension, 9/1/18, 1 pg.
VIII. Confirmation of Extension, 12/8/18, 1 pg.
IX. Confirmation of Extension, 1/7/19, 1 pg.
X. Confirmation of Extension, 2/6/19, 1 pg.
XI. Confirmation of Extension, 3/8/19, 1 pg.
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case
[3] 3Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph
[4] “The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).