New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACTS & DECISION

Case Number: 185237

NYS Identifier Number N/A Student's Name: [“Confidential”]

Date of Birth:

District:

Hearing Requested By: Parent

Dates(s) of Hearing: 11/20/19 & 01/06/20

Actual Record Close Date: 05/18/20

Hearing Officer: Edgar De Leon

NAMES AND TITLES OF PERSONS WHO APPEARED

Title For Date DOE Representative DOE 11/20/19 01/06/20

Speech Supervisor DOE 11/20/19

School Psychologist DOE 01/06/20

Father PARENT 11/20/19 01/06/20 Special Education Teacher PARENT 01/06/20

On July 16, 2019, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), ), Article 89 of the New York State Education Law and Parts 200 and 201 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a(_) year old student attending a public school and the New York City Department of Education (“DOE”) - District: |, concerning the student’s special education program. I was appointed after the recusal of at least one other IHO. After adjournments were granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on November 20, 2019 and January 6, 2020. The parties opted to submit written closing statements which were due and received on January 28, 2020. (D-6 & P-F) A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision.

BACKGROUND

In this case, the Parent alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year, in that:

The New York City Department of Education (hereinafter "the DOE"), through their local IEP Committee (hereinafter "the IEP Committee"), has failed to implement a critical mandate in Impartial Hearing which ordered them to consider a recommendation for a much needed home-based support service (or related service) for our son, [STUDENT NAME]. The IEP Committee did indeed consider the recommendation, however they rejected the recommendation on the contrived and unlawful grounds that providing the home-based support service would not be [STUDENT NAME]'s least restrictive environment.

As shown below the term Least Restricted Environment (LRE) refers to classroom setting, not related services. We therefore request an Impartial Hearing on this matter. At the impartial hearing, the Parent request that the IHO issue an order an order granting the following relief:

(a) | Funding for at least 10 hours per week of RPM support services at home, in addition to the full time 1:1 RPM support services throughout his school day that the IEP already provides, by SETSS hours or as an Assistive Technology Service or any combination of both; and

(b) That the DOE fund this service for the student directly going forward, and that the Parent be reimbursed for his out-of-pocket RPM expenses from July 1, 2019 until the DOE begins funding this service directly as a result of a decision favorable to the Parent.

THE DOE’S CASE

The DOE called (2) witnesses to testify on its behalf and submitted (6) documents into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the DOE case is incorporated in the decision below.

THE PARENT’S CASE

The Parent did not call any witnesses to testify on his behalf and submitted (5) documents into evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent's case is incorporated in the decision below.

FINDINGS OF FACTS & DECISION

Two purposes of the Individuals with Disabilities Education Act (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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982])

A FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA.

(See A.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] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007])

Under the IDEA, if a procedural violation is 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. §

141 5[fI[S][EIlii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and 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 impartial hearing officer'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][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." (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 IEP." (See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998] and 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] [citations omitted] and 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 and 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 [citations omitted]; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008] and Perricelli, 2007 WL 465211, at *15) The IEP 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] and 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][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; 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; E.G. v. City sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009] and Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008])

An 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][1]; 8 NYCRR 200.4[d][2][i]), 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. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No.

07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and

SRO No. 08-087)

The DOE 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.

(See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)

A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000])

"Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [dlistrict's placement is appropriate should be considered in determining the appropriateness of the parents’ placement...." (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents’ unilateral placement is appropriate, "[uJltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see 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." (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)

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 benefit, 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. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65).

The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. §

1412[a][10][C][iii][l] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision.

(See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)

The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)

In the absence of evidence demonstrating that petitioners 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. (SRO No. 04-049)

The DOE argues that regarding funding for at home RPM services going forward, reimbursement for services ended on June 30, 2019. (D-6) The hearing record is clear, and the Parent conceded as much, that the IHO in DPC # did not Order continued funding for continued services, but merely held the DOE take into consideration the recommendation that the Student continue at home RPM services. (D-6, citing T-7) Order merely held that the CSE consider all recommendations in relevant reports (which it did), and fund services for PAST school years. (See also Parent's DPC) On April 18, 2019, the DOE recommended a FAPE by incorporating RPM methodology into the student's every day classes, as well as recommending services to ensure that the student continued to make progress, and also considered the order in Case # , as well as the Parent's independent evaluations and recommendations in preparing the student’s IEP.

(D-6) Finally, the DOE argues that it cannot be ordered to require the DOE to offer the student certain services, it applies to the previous school year, and that the Parent provided no witnesses or evidentiary materials rebutting the DOE’s questioning of the effectiveness about RPM.

The Parent argues that the term “Rapid Prompting Method” (“RPM”), is a trademark of “HALO” (Helping Autism through Learning and Outreach), which is also referred to generically by several other names such as Spelling to Communicate, Letterboard

Communication, Informative Pointing, and Alphabet Therapy. (P-F) The Parent concedes that at the students March 29, 2019 IEP meeting, the DOE made the following recommendations:

On March 29, 2019, [STUDENT NAME]’s IEP Team convened to develop [STUDENT NAME]’s IEP for the 2019-2020 school year. Exhibit A. The March 2019 IEP Team recommended a 12-month program in a 6:1:1 special class placement in a specialized school, special transportation, adapted physical education, and the following special education programs and related services: Math 5 times per week with the utilization of RPM; Social Studies 5 times per week with the utilization of RPM; ELA 5 times per week with the utilization of RPM; Sciences 5 times per week with the utilization of RPM; two 30-minute Group Counseling Service sessions per week (Group of 3); one 30-minute Individual Occupational Therapy session per week in a separate location, e.g., gym, auditorium, trips; one 30-minute Individual Occupational Therapy session per week in a special education classroom; two 60-minute

Group Parent Counseling and Training per year at the school; two 30-minute

Individual Speech-Language Therapy sessions per week; one 30-minute

Group Speech-Language Therapy session per week; one_ Individual

Transportation Paraprofessional daily; one Individual Health Paraprofessional daily; a Dynamic display speech generating device (SGD) daily as needed for school and home; an RPM letter board daily for all instructional periods at school. Exhibit A-12, A-19 through A-20. (Id.)

The Parent also concedes that the student’s IEP Team enthusiastically supported

RPM as a methodology in his IEP. (Id.) Additionally, previously IHO decisions ordered reimbursement to the Parent for lessons given to the student using RPM in his home setting for four years. (P-F, citing T-195-6) The Parent should continue to receive reimbursement funding for the RPM additional support pending the outcome not only of this proceeding, but also pending the outcome of any subsequent appeals to the SRO or the courts that might become necessary. (P-F)

The DOE argues that the Parent is not actually litigating “pendency” but is actually requesting a new service which is one-to-one home-based SETSS. (T-17) In a decision issued on May 18, 2020, the Second Circuit has held:

“Although these tandem cases come to us in different procedural postures, the question presented on appeal is the same: whether parents who unilaterally enroll their child in a new private school and challenge the adequacy of the child’s IEP are entitled to public funding for the new school during the pendency of the IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the parents and the school district and was offered at the previous school.

On de novo review, we conclude that such parents are not entitled to public funding because it is the school district, not the parents, who has the authority to decide how a child’s last agreed-upon educational program is to be provided at public expense during the pendency of the child’s IEP dispute. (See Ventura v. NYC Dept. of Education, No. 19-1662-cv and Carillo v. NYC Dept. of Education, No. 19-1813-cv (2 Cir. 2020 - emphasis added)

The DOE further argues that in the fall of 2017 to 2018, the student received his highest score. (D-6, citing T-153). The student progressed in writing and was making notable albeit, incremental progress, in his current instructional setting. (D-6 citing T-153-62) The DOE also notes that the Parent did not provide evidentiary support or witness testimony to show that the student made progress as a result of Rapid Prompt Method home program. (D-6) The DOE states that it is not required to provide home services unless the student cannot and has not made meaningful progress in school and cites the following as authority for that proposition:

...[G]eneralization across settings is not required to show an educational benefit,”.....school districts must do no more than provide an IEP that enables the Student to “make measurable and adequate gains in the classroom”. Devine v. Indian River Country Sch. Bd., 249 F.3D 1289 (11th Cir. 2001). See Also Thompson R2-J School Dist. v. Luke P., 540 F.3d 1143 (10th Cir. 2008). (“[The] school district is not required to provide every service that would benefit a Student if it has found a formula that can reasonably be expected to generate some progress on that Student’s IEP goals.”) (internal citation omitted); Gonzalez v. Puerto Rico Dept. of Educ., 254 F.3d 350 (1st. Cir. 2001) (Finding an LEA need only make progress with a Student's maladaptive behaviors during the school day).

NY federal district courts and the SRO have adopted this jurisprudence. see P.S. v. NYC Dep’t of Educ., 2014 WL 3673603, *13 (S.D.N.Y. 2014):

student X v. NYC Dep't. of Educ., 2008 WL 4890440, at *17-*18 (E.D.N.Y. 2008); B.K. 884 F. Supp. 2d, at 55; App. of the NYC Dep’t of Educ., No. 12-099; In Re: Student with a Disability, Appeal No. 09-008. (D-6)

The school psychologist, who testified on behalf of the DOE and chaired the student's IEP meeting said that the student was recommended to attend a 6:1:1 class in a specialized school, because “That was the program he was attending. He's been successful there. That was the program the Parents agreed was appropriate.” (D-6 citing T-245)

The Parent's DPC does not request a determination on pendency, which the Parent did not renew until he submitted his closing statement and which for the reasons cited above in denied. Additionally, any request for pendency and related order if any, is terminated by this final decision on the merits.

The record evidence that the DOE created an IEP for the student on March 29, 2019 that procedurally and substantively complies with the requirements of the law. (P-A)

Pursuant to 8 NYCRR § 200.3(a)(1), the membership of each CSE shall include, but not be limited to: (1) the parents or persons in parental relationship to the student; (2) one regular education teacher of the student whenever the student is or may be participating in the regular education environment; (3) one special education teacher of the student, or, if appropriate, one special education provider of the student; (4) a school psychologist; (5) a representative of the school district who is qualified to provide or supervise special education and who is knowledgeable about the general education curriculum and the availability of resources of the school district, this may also be the same individual appointed as the special education teacher/provider, or the school psychologist; (6) an individual who _can_interpret_the instructional implications of evaluation results, such as the regular education teacher, the special education teacher/provider, the school psychologist, the representative of the school district or a person having knowledge or special expertise regarding the student as determined by the school district; (7) a school physician, if specifically requested in writing by the parent of the student or by a member of the school at least 72 hours prior to the meeting; (8) an additional parent member of a student with a disability residing in the school district or a neighboring school district, whose child has not been declassified or graduated for over five years unless the parents of the student request in writing that the additional parent member not participate in the meeting; (9) other persons having

Knowledge or special expertise regarding the student, including related services personnel as determined by the party (parents or school district) who invited the individual to be a member of the CSE; and (10) if appropriate, the student.

Here, the March 29, 2019 IEP meeting was attended by the special education teacher, the Parent, the school psychologist acting as the district representative, a social worker and a teacher. The relevant statute regarding the absence of a “parent member’, a procedural deficiency, states as follows:

8 NYCRR § 200.3(a)(1)(viii) states: 200.3 Committee on special education and committee on preschool special education.

(a) | Each board of education or board of trustees shall appoint:

(1) committees on special education in accordance with the provisions of Education Law, section 4402, as necessary to ensure timely evaluation and placement of students. The membership of each committee shall include, but not be limited to: (viii) an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided that the additional parent member may be the parent of a student who has been declassified within a period not to exceed five years or the parent of a student who has graduated within a period not to exceed five years. Such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting; (emphasis added)

As noted above, a FAPE is offered to a student when (a) the DOE 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. (See Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.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 a procedural violation is 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. §

141 5[fI[S][EIlii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; 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))

There is no evidence in the record that the absence of the “parent member’ denied the Parent the opportunity to participate in the IEP meeting. Additionally, the mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. (See P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008)("A professional disagreement is not an IDEA violation."), Sch. for Language and Communication Development v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006)("Meaningful participation does not require deferral to parent choice."), Paolella v. District of Columbia, 2006 WL 3697318, at “1 [D.C. Cir. Dec. 6, 2006]) I find that the procedural deficiency in this case does not amount to a denial of FAPE.

The record also reveals that the IEP was supported by current evaluative materials, including, but not limited to, psychoeducational testing that was completed in June/July 2018 (with RPM facilitation) and previously in November 2017 (with and without RPM facilitation), and an evaluation that was completed in 2017 by a DOE school psychologist, without the use of RPM. Additionally, the Parent concedes the comprehensive nature of the recommendations made by the IEP team and also concedes that the student's IEP Team enthusiastically supported RPM as a methodology in his IEP. (P-F) I find that the student's March 29, 2019 is substantively sound.

What’s more, the Parent failed to make a showing as to he appropriateness of the relief sought. Here, the Parent needed only to demonstrate that the relief sought provides educational instruction specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from instruction. (Gagliardo & Frank G., supra) However, here the Parent did not call any witnesses to testify on his behalf and did not submit any testamentary or documentary that supports a finding that the relief sought is appropriate.

While the Parent did submit documents in evidence, it is fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of fair hearing. (See Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner...the petitioner was deprived of a meaningful hearing, Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses, Claim_of

Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), (where in an unemployment compensation proceedings, administrative law judge (‘ALJ”) properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer's president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to crossexamine him on the statement, and Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1% Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to crossexamine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).” (Id. at 585, 488 N.Y.S.2d at 179)

Additionally, it is not an IHO's responsibility to craft either side position regarding the primary issue in the case.

For all of the reasons stated herein, I find that the DOE provided the student with a FAPE and that the Parent failed to meet his burden regarding the appropriateness of the relief sought. There is nothing in the record that sustains a finding that the Parent has not cooperated with the CSE and equitable considerations do not bar an award on behalf of the Parent.

NOW therefore, it is hereby

ORDERED that the Parent’s request for relief is denied; and it is further

ORDERED that the DOE shall conduct evaluations of the student in all areas of his suspected disabilities, not identified above and not evaluated within the last two years, for the student’s 2020-2021 school year; and it is further

ORDERED that the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2020-2021 school year.

DATED: May 24, 2020

New York, New York Edgar De Leon - IHO

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. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html

DOCUMENTATION ENTERED INTO RECORD

01. Number/Letter Title Dated For #of Pages Teacher Progress 03/26/19 DOE 03 pages DOE

02. S & L Report 03/25/19 DOE 03 pages DOE

03. E-Mail 02/22/19 DOE 04 Method Position Statement08/31/18 DOE 10 02 pages DOE

05 DPC 07/06/19 DOE 06

06 Closing Statement 01/28/20 DOE 12

03/29/19 28

7TDMOWY

IEP PARENT

Psychological Evaluation 07/19/18 PARENT 09

DOE Psychological 11/16/17 PARENT 03

Withdrawn / Not Received N/A PARENT N/A Parent Letter About “RPM” 02/22/19 PARENT 06

Closing Statement 01/28/20 PARENT 36

N/A N/A N/A IHO N/A