NY IHO #194250: New York City... | Special Education Law

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CASE NUMBER: 537477 - NYC: 194250

FINDINGS OF FACT AND DECISION

Case Number: 194250

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED

(hereinafter “Parent”)

Date of Hearing: Apri1 27 & 28; May 19; December 3 & 6, 2021; January 03; & February 11, 2022

Record Close Date: February 11, 2022

Hearing Officer: Harry Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 27, 2021

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative 1”)

The Parent

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2021

For the Student:

Parent’s representative 1 The Parent For the DOE:

District’s representative

REDACTED (hereinafter referred to as “District’s Witness 1”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 19, 2021

For the Student:

Parent’s representative 1 For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 3, 2021

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative 2”)

The Parent For the DOE:

District’s representative

REDACTED (hereinafter referred to as “District’s Witness 2”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2021

For the Student:

Parent’s representative 2 The Parent

REDACTED (hereinafter referred to as “Parent’s Witness 1”)

For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 3, 2022

For the Student:

Parent’s representative 2 The Parent

REDACTED (hereinafter referred to as “Parent’s Witness 2”)

For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 11, 2022

For the Student:

Parent’s representative 2 For the DOE:

District’s representative

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________________

This matter comes before me at the request of the Parents. A due process complaint (“DPC”) was filed by the Parent on June 5th, 2020 (Exhibit P-A).

On October 28, 2020, I was appointed to preside over this case to conduct an impartial hearing(s) pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC, concerning the special education program of the Student.

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA^[1], and its implementing regulations^[2], and the New York State Education Law^[3], and its implementing regulations^[4].

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

The District’s representative made an opening statement the impartial hearing (“IH”) held on April 27, 2021 summarizing the evaluative materials before the CSE team, the make-up of the team, the teams’ determination and recommendations for the Student, the documents produced by the team, and that the District would lead witnesses to show that both the program created for the student and the recommended placement were appropriate for the 2019-2020 school year (T. P24, L19-25; P25-6; P27, L1-4).

The DOE, through the District’s representative, submitted documents in support of the District’s case, which were admitted into evidence after confirming with Parent’s representative 1 that there were no objections from the Parent to any of the documents being admitted into evidence (T. P38, L19-25; P39; P40, L1-16). A list of the documents admitted into evidence is contained in appendix B.

The District’s representative presented the testimony of two witnesses in support of the District’s case, namely District’s Witness 1 (T. P46-89) and District’s Witness 2 (T. P113-168). At the conclusion of the Parent’s case, the District’s representative made a closing statement asserting, inter alia, that the District did offer the Student a free and appropriate public education (“FAPE”), and how the Student could have made progress at the Proposed School in the program offered (T. P254, L14-25; P255-263; P264, L1-22).

Parent:

Parent, through Parent’s representative 1, submitted documents in support of the Parent’s case, which were admitted into evidence after confirming with the District’s representative that there were no objections from the District to any of the documents being admitted into evidence (T. P42, L12-25; P43-44; P45, L1-8; P237, L10-14). A list of the documents admitted into evidence is contained in appendix B.

The Parent’s representatives presented the testimony of two witnesses, Parent’s Witness 1 in person and Parent’s Witness 2, by way of affidavit (Exhibits P-J) and in person, as well as the Parent. The deponent to Exhibit P-J was required for cross-examination in accordance with the instructions provided at a prior SC.

The Parent’s representative 2 waived the opening statement and made a combined closing statement asserting, inter alia, that the DOE failed to offer the Student a FAPE, that the IEP and program were not based upon information that was available to the committee on the date of the review meeting, how the program fell short, how the Attending School was an appropriate placement, the Student’s progress made, and the relief sought (T. P177, L14-18; P250, L6-25; P251-53; P254, L1-2).

FINDINGS OF FACT AND DECISION

Denial of FAPE:

• 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^[5].
• 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^[6].
• 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^[7]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[8].
• School districts are not required to "maximize" the potential of students with disabilities^[9], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"^[10]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"^[11].
• School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement^[12]. This case does involve a unilateral placement. There was no dispute regarding the burden in this matter (T. P18, L13-25; P19, L1-15).
• My findings regarding a denial of a FAPE for the 2019-2020 school year are as follows:
• The Parent set out several bases, including procedural and substantive, in the DPC (Exhibit P-A-3 through P-A-5) for asserting that the DOE denied the Student a FAPE, whilst the DOE put on a case to prove that the Student was provided with a FAPE for the 2019-2020 school year.

The IEP Developed and the Program Recommended:

• A District must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation^[13].
• Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining the content of the student's IEP^[14].
• A District must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status^[15].
• An evaluation of a student must be sufficiently comprehensive to identify all the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified^[16].
• The IEP must include a statement of a student's academic achievement and functional performance and how the student's disability affects his or her progress in relation to the general education curriculum^[17].
• District’s Witness 2 testified, inter alia, that:
• In terms of documents relied upon, they had the Kaufman Assessment, teacher progress reports, as well as related services reports, and that as it was an annual review, no new testing was done, as it was done prior, and that evaluations were not required at this 2019 meeting (T. P116, L14-25; P117, L1-14).
• A special class of 12:1+1 with related services was recommended because there were some academic concerns expressed at the meeting by the Parent and the classroom teacher, and there were some areas “that the child was still low in” (T. P118, L7-22).
• Regarding social concerns, they recommended counseling and speech and language therapy that could also work on pragmatic skills and socialization skills. They also put the Student in a small classroom setting to help him with some socialization skills, although it would have been addressed mainly through counseling services, which provided for group service (T. P119, L19-22; P120, L3-5; P121, L21-25; P122, L1-2).
• They also gave one group service (S/L therapy), so that the speech teacher could work on pragmatic skills, working in a small group environment, also working on the social-emotional concerns which the Parent had. They specified in and out of the classroom, so that the providers could pull-out the Student and put him in a small group or push-in while he was in the small classroom (T. P122, L3-8, 10-16).
• Regarding concerns with behavioral issues, the Student could, according to the teacher, hurt his friends when he was upset, but not out of anger or aggression, just because of what would happen during his tantrum. There was a functional behavior assessment (“FBA”) and behavior intervention plan (“BIP”) created at the time of the meeting, relying upon the progress reports and information from the Parent and the teacher (T. P122, L17-25; P125, L4-13; P153, L16-18).
• Whatever they recommended for related services came out of the progress reports. They based it upon what they (the progress reports from the Proposed School) felt would be best for the Student when it came to related services. The Proposed School provided them with progress reports with the goals from the related services provider for the Student for the 2019-2020 school year (T. P129, L6-21).
• She believes that the Student would have made academic and social progress in a 12:1+1 setting/class for the 2019-2020 school year (T. P130, L14-17).
• The Student’s attention, that was found by the psychologist to fall within the clinically significant range, was addressed within the OT goals, specifically the third OT goal where it says, “would maintain attention span for a duration of time” (T. P142, L1-14).
• The present levels of performance (“PLOPs”), under the section academic development and functional needs of the student, referenced the Parent’s concern regarding the Student’s distractibility and his need to be in a small group with teacher attention. Additionally, in the OT report dated February 15, 2019 under physical development it indicated that the Student is very easily distracted and demonstrates difficulty focusing appropriately (T. P143, L6-25; P144, L1-7).
• I accept the testimony of District’s Witness 2, who I find was credible and sufficiently qualified and experienced to express the opinions proffered, regarding the program developed, the class setting, and related services recommended for the Student, including it being determined to be the best setting for the Student given the Student’s maladaptive behaviors and how those would be addressed thereby (T. P114, L17-25; P115; P116, L1-7).
• The assertion that the DOE failed to develop an IEP that was reasonably calculated confer educational benefit to the Student for the 2019-2020 school year, for the various reasons asserted in the DPC, is not supported by the record (Exhibit P-A-3 through P-A-5).
• The CSE team that developed the Student’s IEP for the 2019-2020 school year included: The Parent; her Education Advocate; Classroom Teacher; Psychologist; and District’s Witness 2 who acted in a dual capacity (Exhibit P-C-21) (T. P184, L3-24).
• The Parent participated at the IEP meeting, and her concerns were noted in the IEP and there were no specific assertions that she was denied any such opportunity, save for the general assertion in the DPC which was not accompanied by any specific details to support the assertion (T. P184, L3-11).
• A District is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP^[18].
• The CSE team relied upon the psychoeducational evaluation (Exhibit DOE-5) that was less than a year old (approximately 9-months) (Exhibit P-C-1 & -2).
• The CSE team also relied upon the latest reports from the service providers and teacher (Exhibits DOE-6 through DOE-9), and although these are not listed under the relevant section in the prior written notice that provides for such reports to be listed, save for the psychoeducational evaluation (Exhibit DOE-5), it is clear from the contents of the IEP that the reports were used (Exhibit P-C-2 through P-C-5; and P-C-8 through P-C-13) (T. P116, L14-25; P117, L1-14).
• These reports, which also included assessments – for example, the OT progress report documents that the Beery-Buktenica Developmental Test of Visual-Motor Integration (VMI) was administered – were sufficient for the Attending School to provide the Student with the instruction and supports needed to enable the Student to make academic progress.
• It is also noted that the Parent neither requested any additional evaluations or assessments, nor pursued a request for independent evaluations, and the record does not contain specific information that points to an area of suspected disability that has not already been assessed in the existing evaluation and reports (T. P210, L10-14).
• The comprehensive service provider and teacher reports were current, having been prepared within seven weeks prior to the IEP meeting, including, for example, the OT report that was prepared just one day before the IEP meeting.
• The IEP in question contains an accurate description of the Student’s PLOPs (Exhibit P-C-1 through P-C-8), including the Student’s functioning and individual needs regarding the related services needed. These are consistent with the evaluative data available to the CSE team at the time of the IEP meeting.
• The annual goals included were predominately based upon the service providers’ reports, and are specific, measurable, and individualized to the Student. Additionally, for the most part the CSE team adopted the same or similar criteria to measure the Student’s progress towards achievement thereof but did not adopt the criteria exactly (or all the goals in their entirety), which demonstrates that the team still applied its own judgment thereto (Exhibit P-C-8 through P-C-13).
• Accordingly, I do not find that there was additional information needed for the CSE team to develop an IEP for the Student for the 2019-2020 school year, that the annual goals are lacking, not appropriate, sufficiently challenging, or were not tailored to address the unique educational needs of the Student.

The Proposed Placement:

• District’s Witness 1 testified, inter alia, that:
• The class size was sufficiently small (12:1+1) and will a sufficiently small enough ration (2-3 students per adult) for the 2019-2020 school year, to have provided the small group and one-to-one instruction needed for the Student to make educational progress (T. P50, L5-9; P52, L17-21; P57, L19-23).
• The Proposed School had full range of academic subjects, covering all the state requirements for academic policy, including: Teachers College Balanced Literacy for ELA and Fundations for phonemic awareness; and nvision’s math, all being part of the core curriculum in New York City following next generation standards, including physical education and arts activities, with six periods of activity a week (T. P50, L5-9; P55, L2-23; P58, 12-13; P66, L1-2).
• The Proposed School offered bridge classes, where two to three grades not being more than three years apart were included in the make of the class, but approximately half were on a first-grade level, typically working a little bit below grade level peers or they would have been recommended for integrated co-teaching (“ICT”) (T. P51, L12-24; P53, L25; P54, L1-21).
• The class that the Student would have attended had a special education teacher and one class paraprofessional (the fact that there was another paraprofessional, but who may have assisted other students or been free to merge the child into the classroom, has been disregarded for purposes of my findings, as that paraprofessional was assigned to a specific student and there would be no guarantee that this would have taken place or that the Student would have been there the following school year) (T. P53, L3-14; P72, L4-16).
• For related services, the Proposed School had: a full-time counselor in the school building that was not a shared space, where she provides counselling both individual and in group, based on need; as well as space for the speech and language therapist and occupational therapist to provide private sessions if it was an individual mandate; the occupational therapist was on staff full-time and two full time speech and language therapists (T. P59, L13-23; P60, L1-3, & 6-25; P86, L18-22).
• The Proposed School implements a positive behavior intervention system school wide, as well as incentive programs used in each individual class based on student need and could implement both FBA and a BIP. For a student that has an FBA, a BIP is created along with the parent typically, and it is based on observational data done by multiple members including the school psychologist, teacher, some service providers. It is based on individual needs and the Proposed School has had many students with FBAs and BIPs (T. P61, L9-22 & 25; P62, L1-23).
• The Proposed School has various methods of dealing with peer relationship issues, depending on what was happening and what was negatively influencing the relationship, with examples used to illustrate some methods employed (T. P62, L24-25; P63; P64, L1-21).
• For lunch, the Proposed School has three lunch schedules where the period is split, 20 minutes and 20 minutes, with around 100 students in each. The lunchroom is supervised by school aides and paraprofessionals when needed, with an example used to illustrate how this has and can be individualized (T. P66, L3-25; P67, L1-17).
• Progress at the Proposed School is monitored through a variety of methods including: monitoring reading levels; math data; writing data; spreadsheets on every classroom, which the supervisors’ monitor and the teachers’ input data; assessment tools that are used; monitoring student’s IEP goals; and report cards (T. P69, L19-25; P70, L1-16).
• When the Proposed School closed for remote instruction during the school year from March through the end of the school year (similar to the Attending School – T. P242, L19-25; P243, L1-6), the program offered for remote instruction for the class the Student was assigned, namely the 12:1+1 was through Google Classroom, live instruction five days a week and assignments through Google classroom, as well as recorded and independent work (i.e., all three modalities), accommodations were made and students received their mandates for related services during remote instruction (T. P76, L16-25; P77; P78, L1-6; P88, L15-18).
• I accept the testimony of District’s Witness 1, who I find was credible and sufficiently qualified and experienced to express the opinions that she proffered and find that the Proposed School at which the Student was offered a placement for the 2019-2020 school year could have implemented the Student’s IEP dated February 14, 2019, including the Student’s BIP.
• The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement"^[19]. If a student never attends the public schools under the proposed IEP, as is the present case, there can be no denial of a FAPE due to the Parent’s suspicions that the District will be unable to implement the IEP^[20].
• The Second Circuit has stated that claims regarding an assigned school’s ability to implement an IEP may not be speculative when they consist of “prospective challenges to [the assigned school’s] capacity to provide the services mandated by the IEP”^[21].
• When I sought clarification as to the reasons that the Parent rejected the Proposed Placement, the Parent testified that she rejected it because (T. P211, L6-25; P212, L1-3):
• She did not have confidence that it was an appropriate placement for the Student because the IEP teacher was not able to, or did not want to, tell her how behaviors were addressed and she was told “according to the IEP”, and that meant nothing to her as she wanted examples of what they do when a special child has a tantrum, so she did not feel it was an appropriate placement.
• She was not able to see the students.
• Regarding the former reason:
• The Parent testified during her direct testimony that when she asked the IEP teacher, being the person in charge of the special education program, about the program and more specifically, the behaviors in the classroom, the answers she got were vague and that she was told “we follow the IEP”. This answer to her, was an indication that there was no real policy in place or that she did not know what was going on in the program that she manages (T. P187, L12-25; P188, L1-7; P189, L8-19).
• At best, this is mere speculation on the part of the Parent.
• When responding to an unrelated question raised in cross-examination, to clarify her reply to clear up an apparent contradiction, the Parent elaborated upon her initial testimony that made it clear that the IEP teacher had given very specific details of the Proposed School’s rewards system and had not merely responded that they address behaviors according to the IEP, as she had initially stated during direct testimony (T. P205, L7-25; P206).
• It is noted that when asked in cross-examination how the Attending School handles the Student’s tantrums, the Parent testified that the school “have a system in which a student who doesn't behave gets a strike. After three strikes they get a work, what they call a workout. A workout is basically an exercise of students who misbehave too much has to complete a series of quest(ions) … what did I do wrong, what will I do correct, and stuff like that. And that's the way it's targeted” (T. P209, L17-25; P20, L1).
• The method adopted by the Attending School to target the Student’s behavior is not sufficiently dissimilar to the Proposed School’s positive behavior intervention system school wide, or its incentive programs used in each individual class based on student need, to have caused the Parent to have formed legitimate concerns regarding the Proposed School’s ability to target the Student’s behaviors.
• Regarding the latter reason:
• During her direct testimony, the Parent testified that she was told that she could not even see the children, even after she told the IEP teacher that she did not know the kids or their names, because she was told it is confidential (T. P188, L14-25).
• The Parent was specifically referring to the special ed. children during her direct testimony. At one point the Parent appeared to respond defensively during cross-examination and offered additional information to preempt the District Representative’s next question, stating that she got to see the children at lunch, but did not know which were the children that were the special ed. children (T. P207, L8-23).
• The Parent’s testimony that she was told that she could not see the children contradicts District Witness 2’s testimony that they allow parents to stand by the door and monitor the learning environment for a moment or two, if accompanied by a staff member (T. P82, L16-25; P83, L1-5).
• Whether this contradiction resulted from the fact that the children were at lunch and not in the specific classroom at the time of the Parent’s visit, and in giving the Parent the benefit of the doubt and accepting that the Parent’s request was denied based upon privacy/confidentiality of the students, this would have been of no consequence.
• Even if the Parent had seen the children at the visit during the prior school year, there would be no guarantee that those same children would have been the same children in the Student’s class for the 2019-2020 school, as that can and does change, just like it did at the Attending School that initially had five and then seven students in the Student’s classroom.
• Whatever information the Parent may have gleaned from seeing the students, if the students that potentially may have been in the Student’s class were pointed out to her, would not have provided any meaningful information as to whether the Proposed School could implement the Student’s IEP at the Proposed Placement.
• The real reason the Parent wanted to see the students was expressed by her, namely, to see the interaction between the teachers and the students and just to get an understanding of how they address behaviors, because that is a major component of the Student’s deficiencies (T. P190, L1-5).
• Accordingly, this was not a separate reason, and it ties back to the former reason, which has been addressed above.
• Accordingly, the Parent’s stated reasons for rejecting the public-school placement and the conclusion reached that the Proposed School would not have been capable of meeting the Student’s needs would necessarily be based upon impermissible speculation.
• It is asserted in the DPC that the DOE failed to consider the information provided by the Student’s special education providers concerning an appropriate program and class size (Exhibit P-A-4). This assertion is contradicted by District Witness 1’s testimony, who asserted that:
• They chose a 12:1+1 class based upon teacher progress reports, what the teacher indicated, and the concerns of the Parent at the time of the meeting (T. P149, L3-8).
• Given that the Student was functioning between a kindergarten and first grade level, being roughly one year behind, he would typically not require a smaller class than a 12:1+1 class, and they typically do not place them in such a small setting. The Parent was however looking for a brand-new public school, there were a lot of factors: The Student was coming from a small class to go to a big class, which would have been hard for him; he had some behavior issues; he had some academic concerns; some focusing concerns. The 12:1+1 setting would have probably been the best fit for the Student, especially his first time in a public-school setting (T. P164, L11-25; P165, L1-6).
• At the time of the IEP meeting, they felt that the 12:1+1 program was the best setting for the Student (T. P165, L19-24).
• Additionally, when it comes to class size none of the evaluative materials before the CSE team contained any findings or recommendations that the Student requires a special education class size less than 12:1+1 to make educational progress.
• When asked during cross-examination if the Parent recalled at the IEP meeting that they stated that the 12:1+1 was a special education class, the Parent testified that she was aware of it but that it is something that she does not understand (T. P207, L24-25; P208, L1-4).
• Even though a simple enquiry either with the CSE team or her Education Advocate could have clarified it for her, it is significant that the Parent rejected the Proposed Placement without understanding that the Proposed Placement was in fact in a small, special education class.
• When parents have rejected an offered program and unilaterally placed their child prior to the time for implementation of the student's IEP, as in the present instance, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child"^[22] and "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan, not a retrospective assessment of how that plan would have been executed"^[23].
• This means that in terms of ratio, the fact that there may have been less than twelve students in the class in the 2019-2020 school year does not assist the DOE (unless the Parent had actual knowledge of that fact, which according to her testimony was not the case, which evidence I accept), but by the same token the fact that it is a special education class is also pertinent notwithstanding the Parent’s lack of understanding thereof.
• The author of the psychoeducational evaluation provided a list of strategies and accommodations for the school personnel and family members to use to address the Student’s learning needs identified in assessment but reserved the final determination of eligibility and recommended services for the CSE meeting (Exhibit DOE-5-7 & -8).
• In the counseling report (Exhibit DOE-6-1), the related services provider wrote, inter alia:
• “Previous Goals: In the small setting outside of the classroom, [the Student] has been working on accepting limits. He has also worked on using appropriate skills when engaged in interactive activities with his peers (such as turn taking, following directions). The small group setting allows for expression and discussion of feelings and the correct social response.”
• Progress in Meeting Goals, evaluation methods, and criteria: In the small group setting outside of the classroom, [the Student] is working on identify emotions and this goal will continue. [The Student] has a hard time following the group plan and often wishes to play on his own. He will continue to work on appropriately engaging with his peers in group counseling.
• Recommendations: including frequency, duration, and group size: It is recommended that [the Student] continue to participate in a small group of his peers outside of the classroom setting for half hour sessions weekly. In this [the Student] will work on interactive play, social skills, and appropriate expression of emotions.
• The IEP provided that the Student would receive two sessions of 30 minutes per week in a group, either in a separate location in or outside the classroom (Exhibit P-C-13 & -14). District’s Witness 2 testified that the full-time school counsellor had her own office where she provides counselling sessions, both individual and in group, based on need (T. P59, L13-25; P60, L1-3).
• In the Speech Therapy Progress Report, the related services provider merely recommended “continue to receive speech and language services as indicated by his most recent IEP or as deemed appropriate by the school he attends” but did not address class size (Exhibit DOE-7-1).
• In the Teacher Report, the classroom teacher merely noted that the Student “benefits from” a small class size and individualized attention but did not indicate that this is required given the Student’s maladaptive behaviors (Exhibit DOE-8-1).
• In the Occupational Therapy Progress Report, the related services provider, to address the documented concerns, “that [the Student] continue to receive 30 minute occupational therapy sessions 2X per week in an individual setting” (Exhibit DOE-9-1).
• The IEP provided that the Student would receive two sessions of 30 minutes per week individual service, either in a separate location in or outside the classroom (Exhibit P-C-14). District’s Witness 2 testified that the full-time OT on staff had classroom space for the teacher to use, which is not a shared space but an individual space (T. P60, L20-25; P61, L1; P85, L16-25).
• District Witness 2 confirmed during her direct testimony that: in a small classroom, there is a lot more teacher-student and small-group time; if a child required the teacher to sit for a one-to-one explanation, there are two adults^[24], the teacher and the paraprofessional, servicing children at all times in that room and that if it was necessary, the teachers rotate often; the teachers are able to give one-on-one support for children in the classroom, given that it is a small group and in fact described the relevant class as a “12:1:1 small class” (my emphasis) (T. P50, L12-15; P56, L7-15, 20-25; P57, L1-23).
• Additionally, the IEP notes that an ICT class and both a Special Class of 8:1+1 and of 12:1+1 in a specialized school were considered but rejected. The former as it would be too big of a class for the Student considering his deficits and the latter two options as not meeting the least restrictive environment (“LRE”) requirement (Exhibit P-C-19) (T. P166, L7-10).
• Parent’s Witness 1 testified that class size is important for the Student because he needs individualized attention. Her rationale for the smaller class size, was that the smaller the class, the more he could receive. When asked if the Student needed individualized attention, Parent’s Witness 1 responded “mostly”.
• Significantly, when asked she managed to provide it to the Student, she answered that when it came to core subjects, they had smaller groups and she would sometimes have her associate teacher work with the Student near his desk (my emphasis). This is essentially what the District’s Witness 2 testified occurred at the Proposed School (i.e., it is not dissimilar) (T. P218, L23-25; P219, L1-15).
• Based on the record, I find that the recommended special education class of 12:1+1 was the appropriate recommendation for the Student for the 2019-2020 school year.
• It is asserted in the DPC that the DOE failed to develop an FBA and BIP to address the Student’s significant maladaptive behaviors with parent and staff participation (my emphasis) (Exhibit P-A-3).
• The Parent testified that there was discussion concerning the Student’s behavior, as well as his inattentiveness, during the IEP meeting, but that she did not recall constructing a plan (T. P185, L18-25; P199, L3-5). In cross-examination, the Parent testified that there was a discussion regarding targeting types of behavior, as well as discussion around the Student’s targeted problem behavior that had been observed by the Classroom Teacher (T. P200, L4-23).
• The Parent further testified that she looked through her emails yesterday, which would have been December 5, 2021, to see what documents she received. She testified that she found an IEP, a school location letter, a classroom observation that was done by the DOE, she presumed by District’s Witness 1, and an FBA (T. P186, L5-12).
• The Parent testified that although the Student’s behavior was discussed, she was unaware of an actual plan formulated (T. P186, L19-25; P187, L1).
• Whilst the Parent may have not been aware that she was participating in the development of the FBA and BIP, she and her Education Advocate did do so (T. P161, L16-24; P162, L5-9).
• This was clarified by me with District Witness 1 who confirmed in her testimony that this occurred at the IEP meeting so that the team could start asking the questions for the Classroom Teacher and the Parent to help fill out the FBA and the BIP, so that it would be available for the teacher when the Student did go to the Proposed School (T. P166, L13-25; P167; P168, L1-2).
• Although not expressly asserted in the DPC, it was raised at the impartial hearing that the IEP reflects that the Student does not need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the Student’s learning or that of others and does not need a BIP (Exhibit P-C-7 & -19) (T. P159, L11-25; P160, L1-6).
• Given the testimony of District Witness 1 who, when asked how she knew that the BIP was sent to the Parent, testified that it was the procedure to also print the FBA and BIP at the same time they print the IEP, but could not confirm with one hundred per cent certainty that it was done in this case (T. P166, L13-25; P167; P168, L1-2).
• Although the FBA and BIP was developed on the same date as the IEP, it does not appear to have been sent to the Parent and I accept the Parent’s testimony that she received, inter alia, the FBA but could not locate the BIP. It is also consistent with the Parent representative’s letter to the CSE dated June 18, 2019 wherein it was asserted that the Student requires a BIP (Exhibit P-D-2).
• Whilst a student’s need for strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the Student’s learning or that of others and for a BIP must be documented in the student’s IEP^[25], it has been held that even if the lack of a BIP constitutes a procedural violation under state law it doesn’t necessarily mean it will constitute a denial of FAPE^[26].
• In the present instance, there was not the lack of a BIP, but two oversights on the part of the District, namely, the oversight by the CSE team in failing to check both boxes in the affirmative on pages 7 of the IEP to reflect that the Student does need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the Student’s learning or that of others and does need a BIP (and on page 19), and failing to provide the Parent with a copy.
• I find that these oversights are not material, and do not, either individually or taken together, rise to the level of a procedural violation that constitutes the denial of a FAPE for the following reasons:
• When asked during cross-examination if the Attending School created a BIP, the Parent testified that she did not think so and that they have a school-wide behavior system and that they address behaviors according to the school-wide system (T. P200, L24-25; P201, L1-4).
• Accordingly, as far as the Parent was concerned, the Attending School addressed the Student’s behaviors without a BIP (i.e., in her mind, it was no different from Proposed School^[27]).
• When asked whether it would impact the Student if the applicable boxes on page 7 of the IEP were checked “No”, District’s Witness 2 testified that it would not have, because all these documents (referencing the FBA and BIP) are uploaded into the DOE’s system called SESIS and that the teacher would have seen that the FBA and BIP was uploaded once they looked at the Student’s profile (T. P162, L10-25; P163; P164, L1-2).
• The District has an affirmative obligation to offer the student a FAPE^[28]. With certain exceptions, a student’s IEP must be reviewed periodically, but not less frequently than annually, and revised as appropriate^[29] (my emphasis). I find that in the present instance, the District has complied with its obligations and the District has discharged its burden in this regard.
• The record demonstrates that the Student did not require a specialized program with one-on-one supports and/or a small class size (smaller than 12:1+1) to receive educational benefits and that his needs would have been appropriately addressed in the LRE by the program offered in the February 14, 2019 IEP, which was “reasonably calculated to provide some ‘meaningful’ benefit” to the Student, thereby offering the Student a FAPE for the 2019-2020 school year.
• Having found that the District offered the Student a FAPE for the 2019-2020 school year and that the District discharged its onus in this regard, I need not address the issue of whether the Parent's placement at the Attending School was appropriate (or address the equities) and the necessary inquiry is at an end^[30].
• I have considered the Parent's remaining contentions (including all the assertions in the DPC as to why the DOE failed to provide the Student a FAPE for the 2019-2020 school year, in which I find no merit based upon the record) and find that it is unnecessary to address them one by one, as they have been addressed, either directly or indirectly above, save for the following:
• The above findings dispense with all the sought-after relief, save that it does not cover: the claim for the DOE to consider special education teacher support services (“SETSS”) at home to address the Student’s academic and behavioral needs; and that the DOE must provide the Student with transportation to and from the Attending School.

SETSS:

• This relief was not expressly pursued during the hearing.
• According to District’s Witness 1, she did not recall any discussion regarding the Parent wanting SETSS (T. P125, L14-18).
• The record does not support a claim that for the Student to receive a FAPE, it hinges on the Student’s ability to generalize skills across settings.

Transportation:

• The IEP did provide for specialized transportation with accommodations, namely a mini wagon with matron, but the offered placement was rejected (Exhibit P-C-17).
• This is no longer applicable relief based on the school year being over. Even if it were a claim for transportation reimbursement (which it is not and no evidence was provided to support such a claim), the DOE is not required to fund the Student's attendance at the Attending School and therefore would also not be required to fund the Student's transportation.

ORDER

Based upon the above Findings of Fact, it is hereby:

• ORDERED that, Parent’s request for an Order directing the New York City Department of Education to fund the Student’s placement at the Attending School (and related services costs) is denied.

SO ORDERED.

DATED: February 25th, 2022

_HAC (Signed Electronically)___

Impartial Hearing Officer

Harry Aristargos Christodoulou

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 appeals 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.

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Parent’s

Exhibits:

P-A

06/05/20

Impartial Hearing Request

P-B

Fall 2019

Program Description

P-C

02/14/19

Individualized Education Program

P-D

06/18/19

School Location Letter

P-E

08/15/19

Ten Day Notice

P-F

19/20

Class Schedule

P-G

19/20

Attendance Record

P-H

09/04/19

Enrollment Contract

P-I

09/04/19

Related Services Cost

P-J

04/12/21

School Affidavit

P-K

2018

Parents 1040 U.S. Individual Income Tax Return

P-L

19/20

Student Progress Report

P-M

19/20

First Semester Report Card

P-N

19/20

Second Semester Progress Report

P-O

19/20

Distance Learning Schedule

P-P

19/20

Parent Fact statements

P-Q

19/20

Parent Proof of Payments

District’s

Exhibits:

DOE-1

02/14/19

Individualized Education Program

DOE-2

05/03/19

Prior Written Notice (Notice of Recommendation) and School Location Letter

DOE-3

02/14/19

Behavioral Intervention Plan

DOE-4

02/14/19

Functional Behavioral Assessment

DOE-5

06/05/18

Psychoeducational Evaluation

DOE-6

02/__/19

Counseling Progress Report

DOE-7

01/16/19

Speech Progress Report

DOE-8

12/26/18

Teacher Report

DOE-9

02/13/19

Occupational Therapy Progress Report

IHO Exhibits:

None

Footnotes

[1] U.S.C. § 1400 et seq.

[2] C.F.R. § 300 et seq.

[3] Educ. Law Art. 89 § 4404 et seq.

[4] NYCRR § Part 200.

[5] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[6] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[7] U.S.C. § 1415[f][3][E][i].

[8] Rowley, 458 U.S. at 203.

[9] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

[10] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[11] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[12] NYS Educ. Law § 4404(1)(c).

[13] CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].

[14] U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007].

[15] U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii].

[16] CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix].

[17] U.S.C. § 1414[d][1][A][i][I]; 34 CFR 300.320[a][1];8 NYCRR 200.4[d][2][i]; see 8 NYCRR 200.1[ww][3][i].

[18] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.

[19] R.E., 694 F.3d at 195; see E.H., 611 Fed. App'x at 731; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]; T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009].

[20] R.E., 694 F.3d at 195; see E.H. v. New York City Dep’t of Educ., 611 Fed. App’x 728, at 731 [2d Cir. May 8, 2015].

[21] See: M.O., 793 F.3d at 244; see T.F., 2015 WL 5610769, at *7 [holding that for claims regarding an assigned school not to be speculative, the hearing record should contain “definitive evidence that [the student] would not have received the services set forth in her IEP”]; Y.F. v. New York City Dep’t of Educ., 2015 WL 4622500, at *6 [S.D.N.Y. July 31, 2015] [noting that the “the inability of the proposed school to provide a FAPE as defined by the IEP [must be] clear at the time the parents rejected the placement”]; S.E. v. New York City Dep’t of Educ., 2015 WL 4092386, at *12-*13 [S.D.N.Y. July 6, 2015] [noting the preference of courts for “’hard evidence’ that demonstrates the assigned [public school] placement was ‘factually incapable’ of implementing the IEP”].

[22] P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013].

[23] K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187.

[24] It is noted that at this point in her testimony, the witness did not factor in the second paraprofessional dedicated to another student in the classroom.

[25] NYCRR 200.22[b][2].

[26] See, e.g., J.C. v. New York City Dep’t of Educ., 67 IDELR 109 (2d Cir. 2016, unpublished) holding that a district’s decision to forgo an FBA when a student began to act out at school did not rise to the level of a denial of FAPE.

[27] According to Parent’s Witness 1’s testimony this was not accurate as a BIP was used by the Attending School

[28] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[29] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

[30] Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2d Cir. 2000]; Walczak, 142 F.3d at 134; Application of a Child with a Disability, Appeal No. 05-038; Application of a Child with a Disability, Appeal No. 03- 058.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER