Impartial Hearing Decision

HEARING OFFICER DETERMINATION AND ORDER

In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding,

STUDENT^[1], a minor, by and through his/her Parent(s),

-against-

DISTRICT

INTRODUCTION AND PROCEDURAL BACKGROUND

The District (sometimes referred to as “DOE”, “LEA”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of the Student.

A substantive fact finding hearing wherein testimony and evidence was collected^[2] on November 21, 2021; December 6, 2021; December 9, 2021; January 18, 2022; January 21, 2022; January 24, 2022; March 28, 2022; March 30, 2022; April 5, 2022; April 8, 2022; April 26, 2022; July 5, 2022; July 12, 2022; and July 20, 2022.

It is important to note that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended these orders were issued on October 20, 2021, December 19, 2021; February 17, 2022; April 18, 2022; June 17, 2022; August 16,2022, and October 14, 2022. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)). Ultimately the record in this matter closed on or about November 2, 2022.

CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).

The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).

FINDINGS OF FACT AND DISCUSSION

The Student is a [REDACTED]-year old woman who is diagnosed with down syndrome. Prior to the years in dispute, the student was in a private program. In the 2020-2021 academic school years, the Parent sought to return the Student to a public school program. The May 26, 2020 IEP provided for three hours daily of one-to-one instruction, and two 42 minute sessions daily of one-to-one vocational counseling. (Transcript, pg. 1963; Exhibit 1). On or about September 8th or 9th, 2020, the Parents indicated to the District that they now intended for the Student to return to the High School for the full day and receive her academics through the District (Transcript pg. 37-38, 55-56).

The Committee on Special Education (“CSE”) met on September 15, 2020 to recommend a program and related services, and developed a schedule for the Student upon her return to the District as a full-time student (Transcript, pg. 72; District Exhibit 2, 6). At this meeting, the Director of Pupil Services (referred to as the “Director”) recalled discussing what program would be appropriate for the Student, specifically the District’s 8:1:2 program versus the 1:1 individual instruction that the Parents believed was necessary for the Student (Transcript pg. 73-76). As the Director described at the hearing, the 8:1:2 program was appropriate for students who are alternately assessed and for students who have similar profiles and behaviors as the Student did at that time (Transcript, pg. 74-75, 77). The Director further explained that individualized instruction was a component of the 8:1:2 program, depending on the needs and goals of a particular student (Transcript pg. 74-75). Ultimately, the Director recalled, the CSE in September recommended the 8:1:2 program but that the Student would be provided all academics, related services, and vocational programming with 1:1 instruction outside of the 8:1:2 class (Transcript pg. 75-76, 78; Exhibit. 2).

Following the September 15th meeting, the Student's program was ready to be implemented on or about September 29th (Transcript pg. 86-87). The Director recalled receiving periodic updates from the Staff regarding the Student, including that she transitioned very well into the program and appeared to really enjoy being in class with her peers (Transcript pg. 87-91). In fact, the only behavior reported to the Director was when the Student had to transition from the 8:1:2 class back to 1:1 instruction (Transcript pg. 90- 91). During the period between the September 15, 2020 CSE meeting and the December 4, 2020 CSE meeting, there was a voluminous amount of correspondence between the District personnel and the Parents, regarding several items, but predominantly concerning methodology and curriculum (Transcript pg. 94-96, 289-90). As explained to the Parents, the 8:1:2 program used the “Unique Learning System” as the umbrella curriculum, which was aligned with state standards in all core subjects, and the class used components of the ABA methodology (Transcript pg. 97-99, 289-90). Based on Student needs and goals, other programs and instructional methodologies would also be used with a student; no one curriculum or methodology was utilized, and it was dependent on the specific needs of the student (Transcript pg. 97-99, 289-90).

The implementation of 1:1 instruction was modified following the December 4, 2020 CSE meeting, the District testified that the student would continue to receive 1:1 instruction, but within the 8:1:2 classroom (Transcript pg. 109; District Exhibits. 3, 7). A Teaching Assistant was hired by the Director to facilitate this change (Transcript pg. 109). Unfortunately, however, through December and January, the Student was absent a lot from school, including being quarantined twice due to COVID-19, as well as being off from school for winter break (Transcript pg. 110).

Parents on or about mid-January 2021, made a unilateral decision to remove the Student from the Public School. The Parents declined related services through the District, preferring to use their own providers (Transcript pg. 126).

PROVISIONING OF FAPE

The Parent’s allege multiple failures of the District to provide a FAPE. In order to aid the reader and provide meaningful responses to the claims presented, the undersigned has attempted to categorize the litigated and argued claims contained in the Due Process Complaint and closing brief of the Parent.

PROCEDURAL VIOLATIONS, GENERALLY

When the District fails to adhere to the procedural aspects of the IDEA, this does not create a per se denial of FAPE. When a procedural violation occurs those procedural inadequacies must be analyzed to determine if such inadequacy (1) impeded the child’s right to a FAPE; (2) significantly impeded the parent’s opportunity to participate in the decision making process regarding the provision of a FAPE to the student or (3) the inadequacy caused a deprivation of educational benefits (20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii)).

It is generally recognized that procedural violations may not individually rise to the level of a denial of FAPE; the violations can, when taken cumulatively, rise to a denial of FAPE assuming such cumulative inadequacies satisfy the requirements set forth above. “Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations considered individually do not.” ( R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 168 (2d Cir. 2012); see also M.M. v. N.Y.C. Dep’t of Educ., 655 Fed. App’x 868 (2d Cir. 2016)).

It is worth noting that the Parents in this case are highly involved in monitoring their Student’s progress whether it be CSE participation, emails to educators, or similar. This level of involvement is a trait worthy of praise. In the context of the CSE meeting, the Parent perspective of a student cannot be overstated and can represent the most valuable pieces of information for a receptive CSE team.

Sometimes, as I believe here, the Parents eagerness to be actively involved and asking probative questions was greeted as more of a nuisance than the asset that it should have been. To be clear, as a practical matter the District should not heed to a parent’s wish for their Student, but must make every effort to discuss and explain every decision they make for their child.

A parent can, understandably, take a position that seeks to maximize a student’s potential. The CSE goal is somewhat different, the responsibility is to evaluate the objective and anecdotal data and develop a program that accurately identifies the student’s needs and deficits and provide interventions that will allow the Student to make educational progress. Educational progress is not defined as maximizing the Student’s educational potential but rather the much lower requirement of providing for something more than “trivial advancement”.

Based on the circumstance stated below I find that the Parent’s right to participate was severely impacted by these procedural and substantive inadequacies.

FAILURE TO IMPLEMENT IEP

When determining the sufficiency of an IEP, the four corners of the IEP can only be considered. The CSE participants, after reviewing all relevant objective and anecdotal data, should develop a consensus as to the needs of the student and then develop a program to address those needs. This developed program need not maximize the educational advancement of the student but rather offer the student meaningful progress.

The undersigned looks at departures from the IEP in two ways. First are incidental departures from the IEP and these departures which the undersigned does not consider something of note. Educators should be afforded discretion on how to implement the IEP in “the moment”. A student may require an invention at a particular moment that isn’t contained in the IEP. This is an acknowledgement that Students are still developing and what may have worked one day may not work another.

However, if deviations from IEP occur regularly the District must convene a CSE meeting. Changes either for the convenience of the District or to aid the Student must be discussed or amended on consent. The IEP represents an understanding between the District and the Parent and while minor deviations can and should be expected, fundamental changes without discussion are not.

Comparing Exhibit 2 to Exhibit 3 makes the change clear, Special Class 1:1 3x Daily was removed. The Student’s schedule was changed on November 30, 2020 to no longer include the 1:1 special class and to include instead an 8:1:2 class, even though the IEP calling for this change was not made until December 4, 2020 and not slated to take effect until January 4, 2021. (Transcript 1362; Exhibit 3). Therefore, it is clear to the undersigned that the December 4, 2020 meeting was not a meeting to discuss a change but rather a pro forma meeting to align the IEP with the determination that was made outside of the CSE meeting. These circumstances constitute predetermination of the IEP.

Had the District fully discussed the change in earnest, there was a number of evaluations that should have caused the District concern with such a deviation, as parent evaluators had advised that “academics should be taught... in a data-driven manner,” that “[the Student] should not work with a teacher’s aide who is untrained to work with children with highly specialized learning needs.” (Exhibit B) The subsequent, April 2020 report continued to echo that “1:1 support from a paraprofessional or aide – even within a small class or program – is not sufficient given [REDACTED]’s needs.” (Exhibit D).

The District at hearing expressed difficulty in implementing the IEP either as a function of obtaining and retaining credentialed staff or just the complexity of such a program. Regardless, however, the CSE rendered an IEP, assuming the IEP needed to be changed out of necessity or disagreement, this could have been resolved through holding a meeting wherein the parties could fully express their positions. In failing to conform the program and the IEP, the District undermined Parents’ participation in the process and denied FAPE. This type of deviation without a meeting to address the change is material deviation that gives rise to a denial of FAPE (Appeal of a Student with a Disability, Appeal No. 12-015).

SPEECH AND LANGUAGE AND VOCATIONAL DEVIATIONS

The Parents allege that the Speech and Language Instruction did not conform to the requirements in the IEP. The May 26, 2020 IEP called for individual speech-language therapy to be provided four times weekly on an individual basis at a “therapy room.” (Exhibit 1). The District provided speech-language therapy in the classroom on a push-in basis (Transcript pg. 1345, 1404). The therapy was also sometimes provided on a group basis instead of an individual basis (Transcript pg. 1361).

The Parent’s further allege that vocational instruction did not conform to the written IEP and IEP Goals. The IEP called for two 42-minute sessions of 1:1 vocational counseling daily (Exhibit 2). The Director was unable to describe how it was actually provided, testifying, “I'm not exactly sure exactly what that is. We’d have to ask. I don’t remember what that was for.” (Transcript pg. 80). The Classroom teacher testified that [REDACTED] received at least some of her mandated vocational instruction in a group format (Transcript, pg. 1310-1312).

The District switched a substantial part of the Student’s vocational instruction to an online platform called “Digitability.” (Transcript, pg. 1616). This platform focused on teaching a specific skill, digital literacy. Id. The District introduced Digitability even though it did not align with the IEP’s vocational goals (Transcript, pg. 1613, 1616). Other parts of the actual transition programming provided involved the assembly of widgets, as if on a factory assembly line(Transcript, pg. 1826- 27, 1838).

These deviations are substantial as the weight of the credible evidence suggests the student required individual instruction as mandated by the IEP.

PRE-DETERMINATION OF INSTRUCTIONAL METHODOLOGY

The Parent provided multiple evaluations of the recommended PROMPT and ABA instructional methodologies (Exhibit D, B).

In testimony district representatives stated that the District does not specify educational methodologies under any circumstances (Transcript pg. 554). The requirement of one teaching strategy or methodology over another is something typically left at the discretion of the educators. Absent a showing that a specific methodology is required for the Student to derive educational benefit, the CSE need not require one methodology over another. So while one method of teaching may be viewed as optimal, it is not required to be part of a student’s IEP unless that methodology is essential to providing the student an education.

There are, however, circumstances that exist that require a specific teaching methodology. A District’s policy that immediately forecloses the opportunity to discuss the needs of the Student has predetermined, without evidence, an element of the IEP. In this case that policy precluded a necessary discussion on whether or not a specific methodology is required. Regardless of their intention, a District may not wrestle authority away from the CSE team through rigid and inflexible policies applicable to all Students.

Methodology concerns come up often in cases such as this and oftentimes as here, the District incorporates broad elements of the methodology but falls short of specifically providing the methodology itself. Often this may be sufficient so the CSE should look at specific methodology recommendations with a degree of scrutiny. However, this scrutiny cannot result in a blanket policy. In a CSE meeting the parties and ideally the evaluator making the recommendation should discuss why the recommendation was made, what alternatives can be considered, and how the District’s implementation of those principles differ from the methodology and how those deficits (if any) could be addressed.

The CSE can of course depart from the recommendations of any evaluator provided such departure is either supported by some articulable basis. Simply stating that it isn’t “policy” is wholly insufficient and seriously impedes parental participation in the IEP process. To be clear and restated here, the District’s failure is predetermined that a specific methodology was not required, prior to having an earnest discussion regarding the same.

FUNCTIONAL LEVELS AS CONTAINED IN THE IEP

Any CSE meeting must include a discussion of the student’s present level of performance. The Student’s current functioning provides the team a “starting point” from where to develop the IEP. A student's current level of performance should identify their deficits and once their deficits are identified, appropriate interventions can be discussed and implemented. Curing deficits must be addressed in a sensible manner that recognizes that basic elements build upon each other and intuitively, mastery of the basic must occur before the complex.

There should be little disagreement of the Student current performance; this should be easily measured and verifiable through objective data collection and should not be subject to wide disagreements. Should disagreements occur, however, those disagreements should be analyzed and discussed thoroughly and if necessary more objective data should be collected. If the CSE wishes to depart from objective data that was collected consistent with professional standards this departure should be based on something more than subjective inferences. In the instant matter the Student’s reading skills are described as a “kindergarten level” or perhaps lower. (Compare Exhibit 20, and Transcript, pg. 1805). If the members of the CSE believed there to be a disconnect between the objective data of the parent evaluators and that of the District, it is incumbent of the District to discuss those deviations, determine how and why they deviate and if necessary, direct more evaluations.

The Student was expected to achieve skills such as writing an email independently and learning technical concepts such as a uniform resource locator (URL) and widget assembly. While the mechanics of technological use is something that is being mastered earlier in life, the formation of emails and advanced technical concepts are not appropriate goals for a Student reading at a kindergarten level.

SUBSTANTIVE DENIAL OF TRANSITION PLANNING

The IDEA requires a transition plan consisting of appropriate measurable postsecondary goals and they are to begin no later than the first IEP to be in effect when the child is 16.” 20 U.S.C. § 1414(d)(1)(A)(i)(VIII).

Transition goals must be reasonably detailed and not “vague”. See Gibson v. Forest Hills Local Sch. Dist. Bd. of Educ., 655 Fed. App’x 423, 438-39 (6th Cir. 2016). Transition goals are an acknowledgement that schooling is meant to prepare the student for their participation in adult society at whatever level may be attainable for them.

The May 26, 2020 CSE meeting added vocational programming to the Student’s IEP for the first time (Transcript, pg. 1963). Although the District presented this programming as directed toward building skill around individual interests with a goal of sustainable employment, the program actually designed and provided was not aligned to these objectives.

The transition plan on the four IEPs at issue are vague. It does not identify, nor does it set clear direction for a successful transition. The September 15, 2020 IEP merely provides that the Student will participate in instruction aligned with the IEP Goals which lead to the Skills and Achievement Commencement Credential (Exhibit 2). This sentiment expresses an aspiration of graduation, not of allowing her to successfully transition and integrate into society beyond high school years.

In the undersigned’s inquiry, Assistant Principal for Guidance and Pupil Personnel Services replied that the Student’s IEP could apply to any student. (Transcript, pg. 831).

Vagueness as demonstrated upon the fact that the goals are applicable to all students makes the transition goal a goal without substantive meaning and therefore is sufficiently vague to warrant a denial of FAPE.

APPROPRIATENESS OF THE RELIEF REQUESTED

The regulations and case law are quite clear, the parent’s shoulder the burden of proving that the placement for the Student is appropriate. The case law that has developed is equally clear that the appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s, however, must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all” approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student.

Parents need not show that the placement provides every special service necessary to maximize the student's potential. (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receive educational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115).

In the instant matter, the Parent’s in their selection of placement have placed the Student in 1:1 in home instruction with related services being offered through home based interventions. This includes an ABA program with speech-language therapy and physical therapy. (See Exhibits FF, OO, HH).

The results of these programs should not be in dispute. Skill acquisition in the ABA program can be clearly seen in the students periodic reports (Exhibits Q, R, and S^[3]). Similarly, the Parent’s providers have made progress in both physical therapy and speech and language therapy. (Exhibit B, Transcript 1952-53).

Viewing the Parent’s placement within the context of the more relaxed Rowley standards, it is clear that the Parent’s placement offered the Student a program that was tailored to the Student’s needs and provided the student with actual progress.

LEAST RESTRICTIVE ENVIRONMENT

The concept of placing a student in the least restrictive environment that will afford educational progress was originally developed as a protection for a Student from Districts who sought to group special needs children together while not affording them opportunities to be among their typically developing peers despite their level of functioning.

The analysis of the least restrictive environment is analyzed in a similar manner to the appropriateness standards discussed above, that is to say that it is viewed with a more relaxed standard than would be afforded to the school district.

In home 1:1, instruction is among the most restrictive environments for a Student and this type of intervention simply does not afford the student with socialization opportunities as well as opportunities to practice those skills in a group setting. This is particularly true as all evidence available to the undersigned demonstrates that the Student appears to engage and wishes to socialize with her peers. The Parents offered their Student socialization opportunities through the participation of extracurricular activities and structured programs (Exhibits 3 and Transcript 2023). These socialization opportunities provide the Student with critical socialization skills and while I believe it may not be optimal, it is sufficient to meet the least restrictive environment thresholds under the more relaxed standards described above.

EQUITABLE CONSIDERATIONS

While no one equitable factor is dispositive, over the progeny of cases, factors have been identified to consider when they exist in the case such as whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school or whether the Parent was cooperative with the District process in their efforts to meet their obligations under the IDEA (See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] and C.L. v. Scarsdale Union Free Sch. D., 744 F.3d 826, 840 (2d Cir. 2014).

This determination, in essence, is whether or not the parent’s acted in good faith with the district. Much like the District is required to not “pre-determine” a plan or placement before the IEP meeting, so too are the parents required not to “pre-determine” a particular placement of their child. This requirement embodies the idea that the CSE meeting is meant to be a collaborative approach where all parties are participating meaningfully.

COVID CONSIDERATIONS

While perhaps not a traditional equitable concern, the undersigned has included this analysis here. The facts of this case overlap with the COVID-19 pandemic. This global pandemic as every reader of this decision already knows, resulted in fundamental changes that cannot be overstated. Districts across this state and country grappled with exactly how to administer and provision education to students of every district. The ripple effect of COVID has resulted in problems with staffing, retention, and similar administrative issues. Considerations of the complexities of COVID should be considered within the context of reasonableness.

The actions of the District must be viewed within this larger context of COVID, however, the overall objective of the district remained clear and unambiguous during this time, that is, to continue to provision education consistent with the regulations of the commissioner of education subject to any modification made by the commissioner of education.

The IEP remained the cornerstone of the IDEA process and if administrative issues existed in provisioning education consistent with the IEPs drafted, the District was still required to seek out and identify alternatives to the Student. If no alternatives existed, the Parent should have been notified and some accommodation be made.

PARENTAL INVOLVEMENT

Threaded within the District’s arguments both at hearing and in their closing brief is a notion of Parental involvement. The District argument, as interpreted by the undersigned, is that the Parent’s placed unrealistic expectations upon the District and as such the CSE process was doomed to fail. This is evidenced by, as the District argued, the relative short notice of the Parent’s intent to enroll the student in a Public School. The Parent’s “demand” that resumes of educators be provided to the Parent’s and a demand for an in-person tour of the building. Lastly the stream of email correspondence of the Parent to the District personnel regarding curriculum and methodology.

Parental involvement is something that should be encouraged not discouraged. Parental engagement is a hallmark of our public school system and parents should be viewed as partners not encumbrances. The District’s responsibilities to share information with the Parent has understandable limits and the parent cannot be placed in a position where their opinion is given greater weight than that of the professional educators.

If this was a case where the District had appropriately credentialed educators but failed to provide resumes to the Parents. or COVID restrictions precluded an in-person tour of the public school building, the outcome may have been different, as within the context of reasonableness the District would have acted appropriately.

All of this is to say that under certain circumstances, Parental involvement may be onerous, but the salient issue is how the District responds to those attempts. A District is expected to act reasonably to the Parent’s concerns. There is an expectation that a District will reasonably address their concerns, attempt to engage with the Parent where disagreements exist through informal meetings and, when necessary, convene formal CSE meetings in accordance with the IDEA.

Likewise, there is a reciprocal responsibility of the Parent to engage in a reasonable fashion, understanding that the District is bound by regulation and statutes that require analysis not only to provision education to their student but to balance the overall objectives of educating all students of the District.

As stated multiple times, the Parent and District may have different goals at the CSE meeting. A parent should always be an advocate for their child and the District must balance provisioning an education to the Student with that of all the Student’s of the District. Also, if the Parent wants something the District believes does not meet their mandate, then a reasonable discussion must occur.

One salient equitable issue identified by the undersigned is the speed by which the Parent’s expectations were not met and the student’s removal from the District. It is difficult to gauge any program by mere weeks or months. It is difficult to identify progress (or lack thereof) in that short period of time as well. The IDEA envisions annual reviews partly out of practicality but also in part because that time allows the student to become acclimated to the program and strengths and deficits in the program can be more clearly identified and remedied. The District responsibility, again, is not to maximize the student’s educational potential, something that may have been lost at the CSE meetings.

These procedural and substantive deficits identified above lead to a denial of FAPE and deprived the CSE from meaningfully discussing the need or lack of need of a true ABA program and other inventions. The equitable concern of the parent’s “rush” to find the District in default is something that I considered greatly in my determination.

Ultimately, while I do believe that the parents' haste is an equitable concern I do not find that concern rises to the level of reducing or eliminating the Parent’s right to relief. Similarly, I find that the Parent’s program meets the more relaxed standards of Rowley and least restrictive environment.

ORDER

BASED ON THE FOREGOING, IT IS,

ORDERED that the District has failed to provide a FAPE for the 2020-2021 and 2021-2022 school year; and it is further,

ORDERED that the District shall reimburse the parent or where appropriate directly fund the provider for services rendered in connection with the Parent’s in-home ABA program and socialization opportunities including assessments not to exceed $310,081.50 as itemized in Exhibits EE, FF, HH, DD, GG, RR)

ORDERED that to the extent not already provided the District shall perform functional vocational evaluations for the Student.

Dated: November 14, 2022

Garden City, New York

Jeffrey Guerra, Esq.

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 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.

Footnotes

[1] Personally identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.

[2] Included as part of the record, and herein incorporated by references are lists of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e., Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e., Exhibit A, B, etc.). Evidence of the IHO. if applicable, are denoted by roman numerals (i.e., Exhibit I, II, etc.). Page numbers are listed for the convenience of the reader (i.e., Exhibit 1-2, A-2, or I-2 where “2” is the page number).

[3] Some of the data derived included periods of time the Student was enrolled in public school, the Parent’s argue that no benefit can be gleaned from the public school program since the District’s program and the parent’s program did not overlap. Education, to the undersigned, is more fluid than rigid dogmatic principles and it would be impossible for me to arrive at the same conclusion, however, progress was made and continued to be made even after the parent’s unilaterally placed their Student.