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FINDINGS OF FACT AND DECISION
Case Number: 173964
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: August 9, 2018
September 12, 2018
October 19, 2018
November 28, 2018
January 4, 2019
January 18, 2019
March 1, 2019
Actual Record Closed Date: March 20, 2019
Hearing Officer: Leah Murphy, Esq.
NAMES AN TITLES OF PERSONS WHO APPEARE ON AUGUST 9, 2018
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative
NAMES AN TITLES OF PERSONS WHO APPEARE ON SEPTEMBER 12, 2018
For the Student:
, Esq., Parent Attorney
For the District:
None
NAMES AN TITLES OF PERSONS WHO APPEARE ON OCTOBER 19, 2018
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative.
NAMES AN TITLES OF PERSONS WHO APPEARE ON NOVEMBER 28, 2018
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative.
NAMES AN TITLES OF PERSONS WHO APPEARE ON JANUARY 4, 2019
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative.
NAMES AN TITLES OF PERSONS WHO APPEARE ON JANUARY 18, 2019
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative.
NAMES AN TITLES OF PERSONS WHO APPEARE ON MARCH 1, 2019
For the Student:
, Esq., Parent Attorney
For the District:
, Department of Education Representative.
FIN INGS OF FACT AN ECISION
On June 27, 2018, a due process complaint was filed by the parents of (the “Student”) pursuant to their rights under the Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. Section 1415(f) and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “Department”).
I was appointed after recusal, as the impartial hearing officer (“IHO”) on August 1, 2018.
A hearing to determine the student’s pendency placement was held before me on August 9, 2018, at the Impartial Hearing Office located at 131 Livingston Street, Brooklyn.
, Esq., appeared on behalf of the student and her parents via telephone.
, appeared on behalf of the Department, . Thereafter, hearings were held while the parties indicated that they were engaged in productive settlement discussions.
The parties requested extensions of the compliance dates which were granted. The student throughout these proceedings was being educated pursuant to a pendency order.
This matter involves a student born on . He is a student classified with autism. His classification is not in dispute. The Parents have initiated prior impartial hearings regarding the placements for their son for the 2015/2016;
2016/2017 and 2017/2018 school years. At the conclusion of the hearing, the Parents prevailed and the Department was ordered that the Student be placed at the . The placement ordered by the IHO in the previous matter,
, Esq., is set forth in his decision dated March 5, 2018. (P-B). The Department has not appealed decision.
The instant impartial hearing arises as a result of the Parents challenge to a program and placement recommendation made by the Department’s CSE at a meeting held on February 1, 2018. At the meeting, the Parents allege that the CSE effectively dismantled the home program and placement which they believed was appropriate for their son and are now challenging the February IEP. The parents are seeking an order directing the Department to fund the student’s home program which, in addition to placement at the , will include ten hours per week of home-based applied behavioral analysis (“ABA”) services to be provided by a person of the parents’ choice at the enhanced rate; two hours of supervision of the ABA program by a board certified behavioral analysis (“BCBA”) at the enhanced rate; one hour per month of parent training at the enhanced rate; and an AAC device. (R-5).
Without objection I entered into the record the following exhibits: P-A, the request for impartial hearing dated June 27, 2018 (20 pages); P-B, the Findings of Fact and Decision of IHO Guerra, dated March 5, 2018 (22 pages); P-C, Pendency Order, dated September 6, 2018 (5 pages); P-D, IEP dated February 1, 2918 (12 pages); P-E, IEP dated March 17, 2017 (18 pages); P-F, Amended IEP dated March 17, 2017 (17 pages); PG, SETSS Progress Report dated December 31, 2018 (10 pages); P-H, SETSS Progress Report dated December 31, 2018 (11 Pages); P-I, SETSS Progress Report dated December 31, 2018 (9 pages); P-J, SETSS Progress Report dated June 1, 2018 (8 pages);
P-K, SETSS Progress Report dated June 1, 2018 (8 pages); P-L, Neuropsychological Evaluation, dated August 2018 (26 pages); P-M, OT Evaluation, dated January 1, 2018 (8 pages); P-N, Bilingual SL Evaluation dated December 18, 2017 (6 pages); P-O, SETSS ABA Assessment, dated May 27, 2017 (10 pages); and P-P, Correspondence from , dated February 17, 2017 (1 page). The Department did not enter any evidence into the record. Neither party called any witnesses. The Department stated that it was not defending its program and would not challenge the relief sought by the Parents in the hearing. The Parties requested a finding of facts and decision providing the parents with the relief which was agreed to at the hearing.
The parties agreed that the appropriate program is that which was described in IHO decision as follows: placement at -
(or if unavailable a substantially similar school); full time individual crisis management paraprofessional; twelve month extended school year; individual speech/language therapy three times a week for thirty minute sessions; individual occupational therapy three times a week for forty-five minute sessions; AAC device with application; ten hours per week of individual home based ABA by a provider of Parent choice at a reasonable market rate; two hours per month of supervision of the ABA program by a Board Certified Behavior Analyst (“BCBA”) of the Parent’s choice at a reasonable market rate; one hour per month of parent training by a BCBA of the Parent’s choice at a reasonable market rate; and specialized transportation on an air-conditioned mini-bus including limited travel time/short bus ride with a 1:1 transportation paraprofessional. The Department is not contesting the relief sought in this hearing.
Legal Framework
The New York State Education Department Office of State Review has described the legal framework for these proceedings as follows:
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]). 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 CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-
90 [2d Cir. 2012]; M.H. 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 16 an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir.
1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S.
__, 137 S. Ct. 988, 999 [2017]).
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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 (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck
Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).
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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; 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). 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 (20 U.S.C. § 1415[f][3][E][i]).
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (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 IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir.
2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see 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).
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 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), 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 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359.
SRO Appeal No. 18-069.
In this matter, the Department concedes that it has not provided with a free and appropriate public education for the 2018/2019 school year and is not contesting the specific programmatic relief requested by the parents at the hearing in paragraph 108(h)
of the request for due process. (P-A) As a result, I find in favor of the parents and direct the CSE to convene and develop an IEP consistent with this decision.
OR ER:
1. The Department concedes that it did not develop an appropriate IEP for the student for the 2018/2019 school year;
2. The Department is not contesting the relief sought by the Parents which mirrors the agreed upon pendency placement;
3. I find that the parties agree that the appropriate placement for this student for the 2018/2019 school year is as follows:
a. continued placement at - (or if
unavailable a substantially similar school);
b. full time individual crisis management paraprofessional;
c. twelve month extended school year;
d. individual speech/language therapy three times a week for thirty-minute sessions;
e. individual occupational therapy three times a week for forty-five-minute sessions;
f. AAC device with application;
g. ten hours per week of individual home-based ABA by a provider of Parent choice at a reasonable market rate;
h. two hours per month of supervision of the ABA program by a Board Certified Behavior Analyst (“BCBA”) of the Parent’s choice at a reasonable market rate;
i. one hour per month of parent training by a BCBA of the Parent’s choice at a reasonable market rate;
j. and specialized transportation to and from school, on an air-conditioned mini-bus including limited travel time/short bus ride with a 1:1 transportation paraprofessional.
4. The Department shall convene a Committee on Special Education to develop an IEP consistent with this decision for the remainder of the 2018/2019 school year.
Dated: April 4, 2019
LEAH L. MURPHY, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City epartment of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education epartment under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with isabilities Education Act. The epartment of Education has designated the New York City Law epartment 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
IHO EXHIBITS
None
EPARTMENT OF E UCATION EXHIBITS
None
PARENT EXHIBITS
P-A, the request for impartial hearing dated June 27, 2018 (20 pages)
P-B, the Findings of Fact and Decision of IHO , dated March 5, 2018 (22 pages) P-
C, Pendency Order, dated September 6, 2018 (5 pages)
P-D, IEP dated February 1, 2918 (12 pages)
P-E, IEP dated March 17, 2017 (18 pages)
P-F, Amended IEP dated March 17, 2017 (17 pages)
P-G, SETSS Progress Report dated December 31, 2018 (10 pages)
P-H, SETSS Progress Report dated December 31, 2018 (11 Pages)
P-I, SETSS Progress Report dated December 31, 2018 (9 pages)
P-J, SETSS Progress Report dated June 1, 2018 (8 pages)
P-K, SETSS Progress Report dated June 1, 2018 (8 pages)
P-L, Neuropsychological Evaluation, dated August 2018 (26 pages)
P-M, OT Evaluation, dated January 1, 2018 (8 pages)
P-N, SL Evaluation dated December 18, 2017 (6 pages)
P-O, SETSS ABA Assessment, dated May 27, 2017 (10 pages)
P-P, Correspondence from , dated Febru;ary 17, 2017 (1 page)