New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186113

NYS Case Identifier Number: N/A Student’s Name: Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: 10/11/19

3/5/20

Record Close: 4/2/20

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 11, 2019

For the Student:

Attorney

school psychologist

For the Department of Education:

District representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 5, 2020

For the Student:

Attorney

parent

For the Department of Education:

District representative

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

( )isa child whose parents and ( , , parents or parent) have brought the instant hearing, arguing that the DOE had failed to provide — with a free appropriate public education (FAPE) for the 2019-2020 school year. She also asked for a pendency order seeking placement of _at ( , or ). Ex. A.

A pendency hearing convened on October 11, 2019 and a pendency order was issued. The hearing reconvened on March 5, 2020. The record closed upon receipt of the remaining Tr. on April 2, 2020.

DISTRICT AND PARENT POSITIONS

The due process complaint states that the NYC DOE failed to develop an appropriate IEP for — for the 2019-2020 school year, and failed to offer a placement. As relief, the parent requested payment for and placement for at and an order directing the CSE to reconvene to recommend the child’s placement at _ Ex. A.

The child had been attending ( ), and aged out at . Following a pendency hearing conducted in this case, a pendency order dated November 7, 2019 was issued to secure funding for the child’s placement at At hearing on March 5, 2020, the district representative stated that the district was not going to present a case. She also stated that she was not going to be contesting the parent’s placement of the child at , hor anything concerning equities. Tr. 26-27.

FINDINGS

testified thatheis _’s father. The child is . He explained that when she was born, she had low oxygen and was in the NICU for almost 27 days. According to the doctors, the low oxygen caused her to have significant brain damage. She has seizures, and requires a feeding tube because she has problems with swallowing. Due to the brain damage, she is not going to be able to move or talk. She also has low vision, and cannot see more than one foot away from her. She eats only puréed food, and cannot drink anything by mouth. She takes medication for seizures, and for stomach upset and constipation; she hasn’t had any seizures in the past year. Tr. 36-41.

He explained that the preschool services she received at ( ) included, vision therapy, occupational therapy, physical therapy, and speech therapy. The speech therapy incorporated feeding therapy. She also had a person who stayed with her, as she needed something to move her around the class and take her one place to another, as well as perform other tasks requiring movement. At , was too old for , and she graduated from on June 23, 2019. Tr. 13, 42-43.

There was an IEP meeting conducted for the 2019-2020 school year, at which he was told they would send a letter scheduling the IEP meeting. When asked about a meeting attended on April 30, 2019, he agreed that _’s needs were discussed. At the meeting, he described the services she was getting and the medication she was taking, and explained how very limited she was in movement, depending on someone else for moving around, dressing, diaper changing, feeding, and taking medication. He explained that that was when he was told they would send a letter concerning the school she would attend, but no letter was received until after school started in September. Tr. 44-49. is a 12-month student. Tr. 60. described visiting other schools, all schools which had been referred by officials at . Tr. 50-51. The parents wrote a letter dated July 2, 2019, requesting a meeting to reconsider the program recommendation for the child. The letter also noted a pupil acceptance letter for the child, who had been evaluated and accepted at , a New York State approved school for children with severe physical disabilities and who often require life-sustaining medical treatment throughout the day, in addition to academics and therapies. There was no response from the district. began at in September 2019. Tr. 50-53; Ex. J.

He described as a big school with a lot of equipment, with experience in how to deal with the situation his daughter has. She is similar to others at the school, and they have somebody to help her, to move her around and deal with feeding therapy and her multiple medical condition. She is also getting water therapy in a pool at . He stated that he thinks they do more, trying to get her to perform at her ability level and be interested in the equipment for her occupational therapy and physical therapy. He stated that he believes she can get education there, and also help with the services that she needs. Tr. 56-58. , the school psychologist and intake coordinator at , testified that she met in May 2019, when the family was looking into the program at Atthe time — was at , receiving a small class of 8:1:2, with related services of occupational therapy three times a week, speech therapy three times a week, and physical therapy four times a week. Tr. 12. stated that was able to provide —_- with a program that was substantially similar to the program she had received at , is a schoolage program going from age 5 to 21. Students are all classified as having multiple disabilities, the majority with diagnoses of cerebral palsy, seizure disorder, rare genetic or chromosomal syndromes. She explained that is approved by New York State, with a 12:1:4 ratio. All students are in a class of 12 students, with one teacher and four teacher assistants. In addition, provides related services of occupational therapy, physical therapy, and speech. She stated that would provide — with the same services she had in preschool, four times PT, three times OT, and three times speech, as well as school nursing services for her G-tube feedings. Tr. 13, 15-17.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993)

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)(1); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

I find that he district failed to sustain its burden on regard to providing = with a FAPE in the 2019-2020 school year. The district called no witnesses and provided no evidence, conceding by its express declination to put on a case that it had failed to develop an appropriate IEP and failed to provide an appropriate placement for for the 2019-2020 school year. At the same time, the district representative stated it did not contest the appropriateness of the child’s placement at or the equities involved in the case.

A brief examination of the child’s placement at confirms its appropriateness for is a child who needs services to address her significant physical and cognitive disabilities. I credit ’s testimony about the program at , including the array of related services, as well as school nursing services for her G-tube feedings. I also credit _’s testimony about staff available to help her with movement and the aquatic therapy available at . There was no dispute that the child was to receive extended year services, and I note the district’s position that placement was not contested. Finally, I note also that s a State-approved nonpublic school for school-age children with disabilities.

For the reasons noted above, I find the program at offered an educational program designed to meet _’s special education needs. I will therefore be ordering the DOE to fund the child’s placement at and the CSE to convene to place the child’s placement at on the IEP.

ORDER

l. The DOE shall fund —_’s placement at for the 2019-2020 school year.

2. The CSE shall reconvene within 45 days of the date of this decision to change the child’s IEP to include a recommendation for the child’s placement at a nonpublic school, and specifically for IT IS SO ORDERED.

Dated: April 15, 2020

Nawcl M. Lederman

NANCY M. LEDERMAN

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS *

2. IEP, 4/30/19, 20 pages DOE

3. Prior written notice, 5/29/19, 3 pages DOE

4. Classroom observation, 3/8/19 1 page DOE

5. Social history update, 2/7/19, 2 pages * There was no Exhibit 1 entered in evidence. DOE

PARENT EXHIBITS **

J. Impartial hearing request, 8/28/19, 3 pages 7wUr>mNaD IEP, 5/23/19, 17 pages Prior written notice, 6/17/19, 4 pages Pupil acceptance letter,, 10/11/19, 1 page Description,, undated, 3 pages Occupational therapy annual report, 1/2/18, 7 pages Speech language pathology progress note, 1/2/19, 9 pages Physical therapy annual progress report, 13 /2/19, 8 pages — Educational update, 2/5/19, 8 pages Letter, parent, 7/2/19, 1 page

L. Quarterly student report, 11/15/19, 6 pages ** There was no Exhibit K entered in evidence.

THO EXHIBITS

None