New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 217747

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent Date of Hearing:

5/12/2022

5/13/2022

Record Close: 6/17/2022

Hearing Officer: Jennifer Arditi, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 12, 2022

For the Student:

[[REDACTED]], ESQ., Attorney

[[REDACTED]], Parent

For the Department of Education:

[[REDACTED]], ESQ., Attorney

[[REDACTED]], ESQ., Attorney, Observing

[[REDACTED]], ESQ., Attorney, Observing

[[REDACTED]], Spec ED Teacher

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 13, 2022

For the Student:

[[REDACTED]], ESQ., Attorney

[[REDACTED]], Parent

[[REDACTED]], LCSW, M.S. Ed, SAS, SDA, Director, [[REDACTED]] School

For the Department of Education:

[[REDACTED]], ESQ., Attorney

[[REDACTED]], ESQ., Attorney

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

This matter was brought by [[REDACTED]], mother of [[REDACTED]] (“[[REDACTED]]” or “Parent”), against the New York City Department of Education (“DOE” or “District”) to contest the Individualized Education Program (“IEP”) developed for the 2021-22 school year.

The hearing convened on May 12, 2022, and May 13, 2022. A submission schedule for post-hearing briefs was established and the Parent and District both submitted closing briefs on June 17, 2022. The record closed upon receipt of the closing briefs on June 17, 2022.

PARENT AND DISTRICT POSITIONS

The Parent’s Due Process Complaint Notice (“DPCN”) alleges that the District had failed to provide the child, [REDACTED], with a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year. The Parent seeks the following: 1) an order finding that the DOE deprived Student of a FAPE for the 2021-2022 school year and deprived the Parent of their independent right that their child receives a FAPE, as well as their right to participate in the process of developing a FAPE; 2) an order that the DOE pay directly to The [[REDACTED]] all outstanding tuition owed for [[REDACTED]]’s attendance there for the 2021-2022 school year; 3) an order that the DOE reimburse the Parents in the amount of $10,000 paid towards [[REDACTED]]’s tuition at The [[REDACTED]] for the 2021-2022 school year; 4) an order that the DOE authorize and directly pay for independent evaluations consisting of a neuropsychological and such other evaluations as are deemed by the Impartial Hearing Officer to be needed to plan for [[REDACTED]]’s education and that any such evaluations be performed by providers chosen by the Parents, at said providers customary rates; and 5) any and all other relief as the Hearing Officer may find appropriate under the circumstances.

The DOE contends that it provided a FAPE to Student for the 2021-2022 school year and that the Parent’s requests should be denied.

For the reasons detailed below, I find that the 2021-2022 IEP was not reasonably calculated to enable [REDACTED] to receive educational benefits and therefore it did not provide her with a FAPE.

FINDINGS OF FACT

[[REDACTED]] is [[REDACTED]] years old and is classified as having Multiple Disabilities (Parent Ex. 1-1) and has been diagnosed with Global Developmental Delay and Intellectual Disability (id.; and Parent Ex. J-4). [REDACTED] has a number of issues that impede her ability to learn including distractibility, mobility and regulation issues, impulsivity, socially naivety, sensory difficulties, feeding issues, adaptive functioning issues, cognitive delay, articulation deficits, sensitivity to external stimuli which can cause her to become distracted and dysregulated, requires a sensory diet and access to sensory regulating devices, quiet spaces and a sensory gymnasium to remain regulated and available for learning (Parent Ex. U-2). [REDACTED] also needs a “small, nurturing, highly structured, well regulated, climate controlled, calm learning environment with a low student-to-teacher and adult ratio and in which distractions will be minimal and in which she will be provided with the academic, social, and sensory support so she can make progress” (id.).

The DOE convened a CSE meeting on January 14, 2021 to develop an IEP for [REDACTED] for the 2021-2022 school year (Parent Ex. T-7; U-2). At the time of the meeting, [REDACTED] was attending [REDACTED] (“[REDACTED]”) where she had been a student since September 2010 (Parent Ex. J-4; T-1). The DOE has acknowledged that [REDACTED] is [REDACTED]’s pendency placement pursuant to a Findings of Fact and Decision dated [REDACTED] in Impartial Hearing Case No. [REDACTED] (Parent Exs. J, K).

At the time of the meeting, the District had not conducted an evaluation of the student since 2016 (Parent Exs. T-5, U-3 toU-4, 4-2, 5-2). The Parent had provided the DOE with an Interdisciplinary Report of Progress Update from [REDACTED] dated December 2020 (“Progress Report”) which detailed the program and services [REDACTED] had been receiving at [REDACTED] that year, as well as her then-current level of functioning and progress she had made (Parent Ex. 6). The Parent participated in the meeting with [REDACTED]’s classroom teacher at the [REDACTED]. (Parent Exs. T-7, U-3). Mr. [REDACTED], the special education teacher who participated in the meeting on behalf of the DOE, testified that he relied on the [REDACTED] report and the prior year’s Individualized Education Program (“IEP”) in formulating the 2021-2022 IEP and considered both to be reliable source on [REDACTED]’s functioning. (Tr. 44, 56-57; Parent Ex. 6, Tr. 51). The IEP formulated at the January 14, 2021, meeting of the Committee on Special Education (“CSE”) recommended a 6:1+1 setting in a DOE [REDACTED] school with an additional full-time health paraprofessional for [REDACTED]’s feeding, toileting and other self-care needs (Parent Exs. 3-2, I-22, I-23, I-30, U-5).

The Parents received a Prior Written Notice dated June 20, 2021, which included a School Location Letter recommending the DOE’s [REDACTED] K721: P.S. [REDACTED] school (Parent Exs. B, 4), but did not receive a copy of the IEP (Parent Ex. U-3). On July 23, 2021, the Parent wrote to the CSE detailing their concerns and requested assistance in setting up a site visit at the proposed school. (Parent (Ex. D- to D-3 and D-4 to D-5). The DOE did not respond to this letter (Parent Ex. U-4). On August 17, 2021, a ten-day notice letter to the CSE stating the Parent would be enrolling [REDACTED] at [REDACTED] for the 2021-2022 school year (Parent Ex. E). It was not disputed at the hearing that the Parent did not receive a copy of the IEP or that they were not assisted in setting up a site visit at the proposed school.

CONCLUSIONS OF LAW

The purpose behind the Federal Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (FAPE). 20 U.S.C. §1400(d)(1)(A). A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. §1401(9). See 20 U.S.C. §1414(d). The appropriateness of an IEP is determined by assessing whether it was reasonably calculated to provide educational benefit at the time the IEP was formulated, not in hindsight. Antonaccio v. Bd. of Educ., 281 F.Supp.2d710, 724-25 (S.D.N.Y. 2003); Application of the Board of Education of Harrison CSD, Appeal No. 04-34 (SRO 2004). An “appropriate” program is one that is reasonably calculated to induce meaningful progress considering the child’s unique needs and the District must show that it offered instruction “specially designed” to meet a student’s unique needs, Endrew F. v. Douglas County School District, 580 U.S., 14 (2017) Endrew F, 137 S. Ct. 988 (2017). An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walczak v. Florida Union Free School District, 142 F.3d 119 (2d Cir. 1998) supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129.

In Endrew F. v. Douglas County School District, 580 U.S., 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “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.”

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 (NYS Educ. Law§ 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.

For the reasons set forth herein, in this case I find that the DOE has failed to sustain its burden. In so ruling, I note the DOE’s failure to evaluate [REDACTED] since 2016. It is well-established that in formulating an IEP a student must be assessed in all areas of suspected disability and the evaluation must be sufficiently comprehensive to identify all of the student's special education needs. 20 U.S.C. §1414, 8 NYCRR §200.4(b). The DOE must “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, that may assist in determining (i) whether the child is a child with a disability; and (ii) the content of the child’s individualized education program.” 20 U.S.C. §1414(b)(2)(a), 8 NYCRR §200.4(b)(1). A single assessment cannot be used as the sole criterion in developing an IEP. Id. Nor may the “screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation” be “considered to be an evaluation for eligibility for special education and related services.” 20 U.S.C. §1414(a)(1)(E), 34 C.F.R. § 300.302, 8 NYCRR §200.4(b)(8). The IDEA requires that a student be reevaluated every three years unless the parents and the DOE agree that such an evaluation is unnecessary. See 20 U.S.C. § 1414(a)(2)(B)(ii); see also 34 CFR § 300.303-300.311; 8 NYCRR § 200.4(b)(4) In addition, federal regulations require “that a child with a disability must be evaluated before there is any significant change in the child’s placement.” Application of a Student with a Disability, Appeal No. 94-002 (Feb. 28, 1994) (citing 34 C.F.R. § 104.35(a)).

Procedural violations result in denial of FAPE “if they ‘impeded the child’s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decision-making process,’ or ‘caused a deprivation of educational benefits. See 20 U.S.C. §1415(f)(3)(E)(ii); A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir.2009) See also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005) In this case, the DOE the CSE’s recommendation that [REDACTED]’s program be changed from 2:1 classroom in a small school to a 6:1:1 classroom with an additional dedicated paraprofessional in a larger school constitutes a significant change in placement. The DOE’s failure to conduct the triennial reevaluation coupled with its failure to conduct an evaluation prior to recommending a significant change in placement was a procedural error that rendered the IEP legally inadequate and denied [REDACTED] a FAPE. See, M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 223 (2d. Cir. 2012) (quoting 20 U.S.C. § 1400(d)(1)(A)-(B)).

Furthermore, given the DOE’s failure to evaluate [REDACTED] as set forth above and to object to or refute the Parent’s request for and entitlement to independent evaluation in this case, the Parent is entitled to an independent neuropsychological evaluation by a provider chosen by the Parents

WHEREFORE, IT IS HEREBY ORDERED

1. that the DOE pay directly to the [REDACTED] all outstanding tuition owed for [REDACTED]’s attendance for the 2021-2022 school year;

2. that the DOE reimburse the Parent in the amount of $10,000 paid towards [REDACTED]’s tuition at [REDACTED] for the 2021-2022 school year;

3. that that the DOE immediately authorize and directly pay for an independent neuropsychological evaluation by a provider chosen by the Parents at said provider’s customary rates;

4. that the DOE arrange for a Speech and Language Assessment; Occupational Therapy Assessment and Physical Therapy Assessment within 45 days of the date of this decision; and

5. that a CSE be convened within 45 days of receipt of the evaluations ordered herein.

IT IS SO ORDERED.

Dated: July 1, 2022,

Jennifer Arditi

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

`

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

(1)

Individualized Education Program (IEP)

1/14/2021

31pp

(2)

IEP Attendance Page Minutes

1/14/2021

1 pp

(3)

IEP Meeting Minutes

1/14/2021

3 pp

(4)

Prior Notice Package for Placement

5/27/21

5 pp

(5)

Prior Notice Package for Placement

6/20/2021

5 pp

(6 )

Progress Report

December 2020

11 pp

(7)

IEP

4/30/2020

8 pp

PARENT EXHIBITS

• • 9/14/21 Impartial hearing request (21 pp.)
• • 6/20/21 E-mail from [REDACTED] with attached prior written notice and school location letter forms (7 pp.)
• • 7/23/21 E-mail to [REDACTED] et. al. (I p.)
• • 7/23/21 Letter to [REDACTED] (6 pp.)
• • 8/17/21 Ten-day letter (5 pp.)
• • 9/8/21 DOE response to document "E" (I p.)
• • 9/28/21 DOE acknowledgment of receiving the impartial hearing request (2 pp.)
• • 11/2/21 E-mail from the DOE with notice of appearance (2 pp.)
• • 2/23/22 E-mail from DOE with notice of appearance (2 pp.)
• • 8/5/13 Findings of fact and decision for impartial hearing no. 142590 (19 pp.)
• • 10/21/21 E-mail with attached 10/12/22 DOE pendency form, 9/30/21 notarized tuition invoice, 10/8/21 attendance card, Sept. 2021 weekly schedule, 2021-2022 enrollment agreement, and Fall 2021 [REDACTED] learning plan (14 pp.)
• • 10/12/21 E-mail (Ip.)
• • I 0/2121 E-mail. with attached proof of payment (5 pp.)
• • 1/11/22 E-mail with attached I 0/12/22 DOE pendency form, 9/30/21 notarized tuition invoice, Sept. 2021 weekly schedule, 2021- 2022 enrollment agreement, and 12/9/21 attendance card (13 pp.)

(0) 3/10/22 E-mail with attached 2021-2022 enrollment agreement, 3/1/22 attendance card, proof of payment, and I 0/12/21 DOE pendency form (9 pp.)

• • Undated [REDACTED] brochure (8 pp.)
• • Dec. 2020 Progress report (11 pp.)
• • June 2021 Progress report (10 pp.)
• • December 2021 Progress report (10 pp.)
• • 5/4/22 Affidavit of [REDACTED]
• • 5/3/22 Affidavit of [REDACTED] (8 pp.)