New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 186251

Student’ s Name:

Date of Birth:

District:

Hearing Requested by: Parent

Date of Hearing: March 12, 2020

Actual Record Close Date: March 22, 2020

Hearing Officer Laurie B. Lee, Esq.

PROCEEDURAL HISTORY

This hearing was requested on August 30, 2019 (Ex A). The hearing was requested pursuant to the Individuals with Disabilities Education Improvement Act (IDEA) against the NYC Department of Education (hereinafter ―DOE). On September 4, 2019 , I was appointed as the Impartial Hearing Officer in this matter (Ex I). A pendency hearing was held for this case on October 24, 2019 and several prehearing conferences were held following the Pendency Hearing while the District and the Parent explored the possibility of settlement. (Ex I) On November 1, 2019, a Pendency Order was issued retroactive to the date of the filing of the Due Process Complaint. On December 13, 2019, the Parents filed an Amended Due Process complaint which made the same allegations as the original Due Process Complaint with the addition of 20 hours of compensatory SEIT/SETTS services for a two week gap in which the Pendency Order was not implemented. (Ex C, T. 72).

BACKGROUND AND FINDINGS OF FACT

was born on April 24, 2014. She was classified as a preschool student with a disability. The history of this case will be detailed throughout this opinion.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 generally Forest Grove v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. 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 procedures is reasonably calculated to enable the student to receive educational benefits (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 (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 (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; see

Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.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]; 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 (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 v.

Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; see Rowley, 458 U.S. at 189). The statute ensures an 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 P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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 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; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). A FAPE must meet a student’s “unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. §§1400(d)(1)(A)-(B), 1412(a)(1). A FAPE must also “include an appropriate . . . elementary or secondary education in the state,” meet the “standards” of the state that apply to all children and be provided pursuant to an IEP. 20 U.S.C. §§1401(9), 1414(d)(2)(A). See also Bd. of Educ. v. Rowley, 458 U.S. 176, 203

(1982).

The U.S. Supreme Court recently held that a child’s IEP must be evaluated based on the child’s ability to make appropriate progress and be appropriately ambitious considering the child’s unique circumstances. Endrew F. v. Douglas County School District RE-1, No. 15–827, 580 U.S. __, 14 (2017). The progress contemplated by the IEP ;must be appropriate considering the child’s circumstances, be more than de minimus and include academic and functional progress. Endrew F., 580 U.S. __, 11(“[w]when all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all.”).

See also, Letter to Clarke, 48 IDELR 77 (OSEP 2007)("educational performance; is not limited to academic performance). IEPs are supposed to “ensure access” to “the general curriculum” so that students have the opportunity to “meet the educational standards within the jurisdiction . . . that apply to all children.” 34 C.F.R. § 300.39(b)(3); 34 C.F.R. §

300.320(a)(1)(i). IEP goals and services have to be “aligned with State academic content standards for the grade in which [a student is] enrolled.” 4 Further, when a student’s “present levels of academic performance are significantly below grade level,” IEP goals and services should be “sufficiently ambitious to help close the gap” between the student’s skills and the standards. Id. at 5. The IDEA also requires each state to “have in effect policies and procedures to demonstrate that the State has established a goal of providing full educational opportunity to all children with disabilities, aged birth through 21, and a detailed timetable for accomplishing that goal.” 20 U.S.C. §1412(a)(2).

The IEP should be based on current and comprehensive multidisciplinary evaluations, progress reports, district-wide assessments, observations, and input from teachers, providers, and other individuals with knowledge of the child. 5 Every child’s IEP must contain a statement of “special education and related services and supplementary aids and services,” and “program modification or supports for school personnel.” See 20 U.S.C. §1414(d)(1)(A)(i)(IV), 34 C.F.R. §§300.320(a)(4), 300.324(a)(2)(i).

While the IDEA defines the categories of services that must be offered, the list is not designed to be exhaustive. See 20 U.S.C. §1401(29). The types of services that must be prescribed on an IEP and/or considered by the IEP team include, but are not limited to special education services— defined as “specially designed instruction,” 6 “related services,” 7 supplementary aids and services for children during the school day as well as during any nonacademic and extracurricular activities, 8 and Extended School Year (“ESY” or 12-month school year). 9 To fulfill the IDEA mandate, the DOE was also required to adopt a “continuum of alternative placements” that must include, inter alia, regular class, special classes, special schools, instruction at home, and must make provision for “supplementary services.” 20 U.S.C. §1401(29); 34 C.F.R. § 300.115.

Finally, the IDEA mandates that the DOE “establish and maintain procedures,” to ensure that parents and children are “guaranteed procedural safeguards.” 20 U.S.C. §§ 1414,

1415. The IDEA mandates that the Defendants provide due process rights, notices, and procedural safeguards.

The Student, was receiving 10 hours of individual SEIT services as a result of the Pendency Order based on the February 26, 2019 IESP which ordered that receive 10 hours individual SEIT(SETTS) services, Speech Therapy, 3x30 individual and Occupational therapy 2 x 30. At issue in this case was the SETTS services (now called SETTS v SEIT) due to the age of the child. A IEP meeting had been held on March 27, 2019 at which the recommendation was made that the student received 15 hours of SETTS services in a group as opposed to 10 hours of individual services. Also, as stated before, at issue was 10 hours of compensatory services for two weeks of SEIT/SETTS Pendency Services which were not provided. Additionally, the Parent was requesting an Individual Evaluation be done at market rate in order to develop a Behavior Intervention Plan (BIP) for the Student.

The parent presented two witnesses in their case: , the Student’s SETTS provider from and the Parent, (via affidavit Ex. H and cross). The first witness works as a SETTS provider for the Student and is a New York qualified Special Education Teacher who has held that license for approximately twelve years (T. 77). The witness described her work with the Student and the progress that the student had been making with her (T. 78-99).

The parent described ’s struggles and satisfaction with the 10 hours of individual SETTS being provided by Ms. of in both his affidavit and in cross examination at Hearing (Ex H, T. 112-117).

BURDEN OF PROOF

The DOE bore the burden as to whether FAPE was offered N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal Nos. (“SRO Nos.”) 16-028; 13-200; 11-091; SRO No. 11-053. The DOE did not have any witnesses in this case; instead they rested on their exhibits and cross examination . Their argument was against rate of compensation; however, during the course of the Hearing, after both of the witnesses testified, the DOE indicated that the Parent’s proposed resolution to this matter was acceptable. (T. 117-120), and offered no objection to the continuation of SETTS being provided 10 hours a week individually by the current provider at the DOE rate and for an Independent Evaluation being conducted at market rate in order to create a BIP for the Student.

The only difference in opinion regarding services at the end of the Hearing was regarding at the request for how to handle the situation in the case that the current provider at the time of hearing becomes unavailable. The District asked that they be given 60 days to find a different provider while the Parent asked that the District be given 15 days to procure a different provider in the event of unavailability. Given that a district is ordinarily required to procure services for a child within 30 days of an IEP, it seems that 15 days to find a replacement provider would be much more reasonable.

It is ORDERED that:

1, The DOE shall pay the costs of the student’s receipt of hours of 10 hours of individual

SETTS per week for the 2019-2020 school year at the DOE rate for the student’s current provider, Ms. from ; if the current provider becomes unavailable at any time, the DOE has 15 days to find another appropriate provider at the DOE rate, if a subsequent provider in not found by the DOE within 20 days the parent may find a SETTS provider at market rate (market rate shall not exceed the maximum market rate being paid by the District for a SETTS provider).

2. The DOE shall pay for an Independent Neuropsychological Evaluation to be conducted to create a Behavior for the Student. The cost of the Evaluation shall be market rate (market rate shall not exceed the maximum market rate being paid by the District for Independent Neuropsychological Evaluations).

3. Compensatory Services of 15 hours of individual SETTS shall be provided to the Student. . The hours may be provided at any time, during the day, after school, during holidays, weekends, summers or other school breaks.

April 6, 2020

Laurie B. Lee

Laurie B. Lee

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 35 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. “The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35day period.” (8NYCRR279.2[b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision. Directions and sample forms for filing an appeal are included with this decision. Directions and forms can also be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm .