New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 222499

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent Date of Hearing: 3/9/2022

3/14/2022

Record Close: 3/31/2022

Hearing Officer: Jennifer Arditi, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 9, 2022

For the Student:

[REDACTED], ESQ., Attorney (Via Telephone)

[REDACTED], BCBA, [REDACTED] (Via Telephone) [REDACTED], Parent (Via Telephone)

[REDACTED], Parent (Via Telephone)

For the Department of Education:

[REDACTED], District Representative (Via Telephone) [REDACTED], CPSE Administrator (Via Telephone) [REDACTED], Director, [REDACTED] (Via Telephone)

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 19, 2022

For the Student:

[REDACTED], ESQ., Attorney (Via Telephone) [REDACTED], Parent (Via Telephone)

For the Department of Education:

[REDACTED], District Representative (Via Telephone)

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] (“Ms. [REDACTED]” or “Parent”), against the New York City Department of Education (“DOE” or “District”) to contest the Individualized Education Program (“IEP”) developed on October 25, 2021, for the 2021-22 school year (“2021 IEP”).

The hearing convened on March 9, 2022, and March 14, 2022. A submission schedule for post-hearing briefs was established and the Parent submitted a closing brief on March 31, 2022. On that date, the District advised that it was waiving the submission of a written closing brief and resting on the record. The record closed upon receipt of the Parent’s brief on March 31, 2022.

PARENT AND DISTRICT POSITIONS

The Parent’s Due Process Complaint Notice (“DPCN”) argued that the District had failed to provide the child, a Preschool Student with a Disability, with a Free Appropriate Public Education (“FAPE”). The 2021 IEP recommended that the student attend [REDACTED] (“[REDACTED]”) in a 6:1:3 class and receive related services of occupational therapy (“OT”), physical therapy (“PT”), speech-language therapy (“SLT”) and a 1:1 paraprofessional (“Para”) throughout the school day and on the school bus. (Exhibit D 17) The Parent requests an order requiring the DOE to fund applied behavior analysis

(“ABA”), Occupational Therapy (“OT”), Physical Therapy (“PT”) and Speech Language Therapy (“SLT”) at home through the end of the 2021-22 school year as well as compensatory ABA and related services to make up for services and instruction resulting from the DOE’s failure to have a paraprofessional in place on the IEP’s implementation date.1

At the hearing on March 9, 2022, the DOE stated that the student, [REDACTED] was offered a FAPE for the 2021-2022 school year, that the IEP was procedurally valid, substantively appropriate and reasonably calculated to enable [REDACTED] to make meaningful academic progress. The District acknowledged that there was a delay in securing a 1:1 paraprofessional for the student until the middle of January 2022 and, as a result, the student was unable to attend his program at [REDACTED] until one was secured in January 2022.

The Parent stated that the IEP developed on October 25, 2021, for the 2021-2022 school year failed to provide a FAPE because the CPSE predetermined the program at [REDACTED] and ignored the recommendations set forth in the reports provided by the Parent. Specifically, the Parent contends 1) that it is medically necessary that [REDACTED] 1:1 paraprofessional follow a [REDACTED] protocol utilizing ABA methodology to ensure he was appropriately hydrated and nourished during the school day; 2) that it was medically necessary that [REDACTED] attend a preschool with a nurse to deal with any medical emergencies that might arise; 3) that ABA services were required both in school and at home; and 4) that it was medically necessary that [REDACTED] receive speech language therapy 5 times per week for 30 minutes. The IEP was to be implemented on November 8, 2021. However, the IEP could not be implemented until January 26, 2022, because a paraprofessional could not be secured, and transportation was not in place.

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

FINDINGS OF FACT

The District offered the telephonic testimony of [REDACTED], CPSE Administrator and [REDACTED], Director, [REDACTED], both via telephone. Ms. [REDACTED] s testified that on October 22, 2021, the CPSE held a telephonic meeting to develop the 2021 IEP (“Meeting”). A subsequent meeting was held on October 25, 2021, to add the 1:1 para. (Tr. p. 45:4-9). Although Ms. [REDACTED] acknowledged during her testimony that [REDACTED] from [REDACTED] participated in the meeting, (Tr. p. 62:20-21), and Mr. [REDACTED] testified that he attended the meeting as well, the IEP only lists two participants: Ms. [REDACTED] and [REDACTED], CPSE Administrator/District Representative. (DOE Ex. 17-2) There is no record that anyone else participated in the meeting. Ms. [REDACTED] s testified that [REDACTED] has a diagnosis of autism spectrum disorder, overall global developmental delay and that he requires prompting to attempt any activity. At the time of the CPSE, [REDACTED] presented with “a lot of” limited academic abilities, limited awareness, fleeting eye contact and overall poor attention skills. [REDACTED] also has low muscle tone, generalized muscle weakness, speech delay, behavioral issues, [REDACTED] difficulties and some self-injurious behaviors. At the time of the meeting, [REDACTED] had just completed a [REDACTED] that ran from the beginning of September to mid-October. (Tr. p.49-15:17-13)

In addition to the psychological, educational, speech therapy, physical therapy and occupational therapy evaluations conducted as part of the DOE’s reevaluation process, the Parent also submitted reports for the CPSE’s consideration. Ms. [REDACTED] s acknowledged having received, and the CPSE having reviewed, the following reports on behalf of the Parent: (1) [REDACTED] August 2021 evaluations (DOE Exs. 7-13); (2) report dated July 5, 2021, from [REDACTED] of [REDACTED] (Parent Ex. H); (3) report dated from the [REDACTED] [REDACTED] Program (Parent EX C-D); and (4) letters from [REDACTED] treating pediatricians, Drs. [REDACTED] and [REDACTED] (Parent Ex. H-K).

The October 15, 2021, report from the [REDACTED] Program stated that “[d]ue to [REDACTED] ongoing severe [REDACTED] difficulties, he remains at risk for malnutrition and dehydration. It is medically necessary for [REDACTED] to be provided mealtime support with a 1:1 paraprofessional while at school using the ABA Methodology. Therefore, a paraprofessional trained in ABA is recommended since our [REDACTED] program uses ABA methodology….”

Dr. [REDACTED]’s letter dated August 10, 2021, stated “[REDACTED] suffers from [an] intense [REDACTED] disorder and cannot drink water and/or self-feed. He requires a nurse on campus to prevent choking incidents at school. [REDACTED] is nonverbal and cannot communicate his needs…It is medically necessary to have a nurse in school. [REDACTED] will be able to receive the assistance he needs in emergency situations.” The August 10, 2021, letter from Dr. [REDACTED] stated “It is medically necessary for [REDACTED] to receive extensive speech therapy at least 5 days a week for duration no longer than 30 minutes per day at school (5x30) and in the community setting.” Ex. H-2. The letter further explained that due the defects deficit in receptive, expressive or pragmatic language that [REDACTED] is “at-risk of developing Developmental Expressive Aphasia and at-risk for Language-Based Learning Disability

– Dyslexia.” The CPSE recommended a special class of 6:1:3, is the ratio, SLT 3 x 30, OT 3 x 30, PT 2x30, parent counseling and training once a month, a tablet with the support of dynamic display speech generating device, Extended School Year and a 1:1 para. There was no testimony concerning the CPSE’s consideration of any of the recommendations concerning [REDACTED] medical needs set forth in the reports submitted by the Parent. Ms. [REDACTED]s testified that the request for the medical accommodations was forwarded to the Office of School Health which ultimately made the decision for the 1:1 para. (Tr. p. 53-54: 15-12) The IEP also does not refer to any of the reports submitted by the Parent or any of the recommendations made therein.

The implementation date for the 2021 IEP was November 8, 2021. (DOE Ex. 17-13) However, due to the DOE’s inability to find a Para, followed by delays in instituting [REDACTED] busing, (Tr. p. 143:19-25); he did not begin attending [REDACTED] until January 26, 2022, (Tr. p. 144:3-4), approximately 11 weeks after the anticipated start date. [REDACTED] did not receive any services during this 11-week time period. The Para, who started on January 26, 2022, quit by February 17, 2022, after [REDACTED] had only attended [REDACTED] for six days. (Tr. p. 90:9-12). Since then, he has again been at home without services. (Tr. p. 148:8-14, 149:19-25 – 150:1-10).

[REDACTED], Director of [REDACTED] testified that [REDACTED] is a 12 month preschool program for children with special needs and developmental delays. (Tr. p. 77:19-25) The program utilizes ABA in the building throughout the day, has a 6:1:3 class and offers OT, PT, SLT, parent training, parent counseling, parent support groups. (Tr. p. 80:10-20) There is no school nurse on staff and in the event of a medical emergency, the staff is trained in first aid and CPR. If necessary, the staff will call 911 and go on medical lockdown. (Tr. p. 93:10-25) Mr. [REDACTED] acknowledged that [REDACTED] had “significant [REDACTED] problems” (Tr. p. 97:7-9) and that the para assigned to him was not completely trained to use ABA methodology and most of the training to assist with [REDACTED] was given by the Parent. (Tr. p. 98:17-13)

[REDACTED] of [REDACTED] testified for the Parent that he is a Board-Certified specialist in applied behavioral analysis (“BCBA”). Mr. [REDACTED] evaluated [REDACTED] in July 2021 at the Parent’s request. He was present at the October 2021 CPSE meeting and presented his July 5, 2021, report. (Tr. p. 105:13-19) Mr. [REDACTED] testified that [REDACTED] has an extreme deficit with language and overall communication, no functional language and functional meaning, he cannot request or label items correctly, has no eye contact, overall social and language skills were almost completely absent and he required constant redirection during the evaluation. He also reported that [REDACTED] exhibited self-stimulating behaviors and, when trying to redirect or block some of the restrictive behaviors, the self-stimulating behavior became more intense and started to become self-injurious. Mr. [REDACTED] testified that [REDACTED] would “benefit significantly” from ABA which ideally would be a combination of both in school and at home for a total of 40 hours per week.

[REDACTED], the parent testified that [REDACTED] suffers from plantar fasciitis, cognitive developmental delay, mixed expressive and receptive language disorder, astigmatism, autism spectrum disorder, global development delay, severe [REDACTED] disorder, hypotonia, gait issues, sensory integration dysfunction due to significant sensory processing issues, fine motor delays and gross motor delays. He is also at risk of dyslexia, developmental aphasia, a language-based learning disability and neuromotor deficits.

Due to his severe [REDACTED] issues which put him at risk for malnutrition2, [REDACTED] was enrolled in an intensive six week [REDACTED] at [REDACTED] Hospital from September 1, 2021, through October 15, 2021. Ms. [REDACTED] attended the program with [REDACTED] on a daily basis, which ran from 8:30 a.m. to 2:30 p.m. each day. After the daily sessions ended at 2:30 p.m., the Parent then attended a consultation for parent/caregiver training to prepare for the following day. Ms. [REDACTED] testified that during the program, the child would be [REDACTED] by the parents, therapist and [REDACTED] technician with a BCBA providing guidance. (Tr. p. 130-131: 18- 21)

2 The Parent testified that it would take up to three hours [REDACTED] one meal. (Tr. p. 130: 2-5)

Ms. [REDACTED] testified that in addition to the reports she provided for consideration at the meeting, she also informed the CPSE during this meeting of her own concerns including [REDACTED] history of hospitalizations, extreme stomach issues and the need for a nurse in the school building. Regarding her concerns that school nurse be available, Ms. [REDACTED] testified that in the event of a choking incident, because he is non-verbal, he will not be able to advocate, or at least ask for help, in those situations. It is extremely important that there is a nurse on campus. If something were to occur to him, there is no communication….It's usually hitting his head nonstop, crying out loud, and nobody will know, if you don't know him, what the reason is for his behavior. So, for example, at [REDACTED] program when it began, he fainted in my arms three times, and I shared that with everyone from the Committee on Preschool Special Education. And I was advised by Mr. [REDACTED] that, oh, if that were the case, we will take -- call 911, take him to the hospital.” (Tr. p. 133-134: 17-10) She also testified that she asked that her concerns be noted in the Parental Concerns section of the IEP. The IEP does not reflect the concerns Ms. [REDACTED] expressed to the CPSE during the meeting or any of her concerns regarding [REDACTED] the medical issues and needs.

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.2d

710, 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.

In this case I find that the DOE has failed to sustain its burden. In so ruling, I note the IEP formulated for the 2021-2022 school year was not designed to meet [REDACTED] unique needs. Specifically, the IEP formulated failed to address the student’s documented medical needs, the need for a 1:1 paraprofessional trained in ABA methodology for medically necessary mealtime support while at school; the need for a nurse in the school building and failed to address [REDACTED]’s severe SL deficits. The District offered no testimony that the CPSE considered the information in the reports, nor did they offer any testimony or evidence to dispute to the recommendations contained in the report or to counter those recommendations.

The Individuals with Disabilities Education Act (IDEA) requires that FAPE be made available to students with disabilities through the provision of special education and related services, including school health services and school nurse services. For some students, nursing services, including the assignment of a full-day (continuous) one-to-one nurse, may be a required related service for the student to receive FAPE. Cedar Rapids School District v. Garret 526 U.S. 66 [1999]. The CPSE’s determination as to whether a student needs school health services or school nurse services as a required related service to receive FAPE must be made on an individual basis. This decision should include the student's parent. The types and amounts of services to be provided must be individually determined based on each student's unique needs and documented within the student's IEP. In developing an IEP, the CPSE/CPSE must consider current evaluation information about the student. In this case, there was no testimony to establish that the CPSE even considered the recommendations set forth in the reports by [REDACTED] providers. Instead, the matter was deferred to the Office of School Health and there is no indication that the CPSE even considered this request or nor does the IEP contain any information regarding [REDACTED] documented medical needs.

In addition, I further find that the Parent was denied a meaningful opportunity to participate in the development of the IEP. I credit the parent’s testimony that she voiced her concerns to CPSE regarding [REDACTED] medical needs, requested that certain items be noted in the Parental Concerns and that the reports she submitted were not given meaningful consideration by the CPSE.

ANALYSIS

Here, it is clear from the record before me that the student had specific medical needs that were not addressed in the IEP. At no point during the hearing did the District offer any evidence that considered the student’s medical needs, that it attempted to select or assign a provider to deliver the services as indicated in the Student’s IEP pending the assignment of the 1:1 para nor was there any explanation whatsoever from the District as to why the services were not provided to the student pending the assignment of the 1:1 para. I therefore find that the Student was denied a FAPE for the 2021-2022 school year. The Student was denied ABA, Physical Therapy, Occupational Therapy and Speech Language Therapy. Therefore, the District must fund or provide those services that the District failed to provide.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund/provide the following services, to the extent it has not already done so, for the Student for the 2021/2022 school year:

• • At-home ABA for 40 hours per week for the remainder of the 2021-22 school year through August 2022;
• • At-home services of a BCBA for two hours per week for the remainder of the 2021- 22 school year through August 2022;
• • At-home compensatory ABA services, to be used within one year, in an amount equal to 20 hours per week for the time period the student was not provided ABA services during the 2021-2022 school year;
• • At-home SLT (5x30), OT (3x30) and PT (2x30) for the remainder of the 2021-22 school year through August 2022 with providers selected by the Parent;
• • Seventy-Five (75) hours at-home compensatory SLT (5x30) to be used within one year with a provider selected by the Parent;
• • Forty (40) hours at-home compensatory OT (3x30) to be used within one year with a provider selected by the Parent;
• • Twenty-five (25) hours at-home compensatory PT (2x30) to be used within one year with a provider selected by the Parent; and
• • All of the above listed services shall be paid by the District at the current market rates or such lower cost as the District and/or Impartial Hearing Implementation Unit may have paid to the same provider for substantially similar services during the 2021-2022 school year, whichever is lower.

IT IS SO ORDERED.

Dated: April 20, 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.

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EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

Various Dates

Preschool Student Evaluation Summary Report

2 pages

4/13/2021

Assistive Technology Evaluation

10 pages

6/25/2021

Assistive Technology Training Report

2 pages

7/6/2021

Educational Annual Progress Report

3 pages

7/9/2021

Speech and Language Progress Report

1 page

8/2/2021

Consent for Testing

6 pages

8/2/2021

Social History

3 pages

8/2/2021

Behavior Observation

1 page

8/2/2021

Psychological Evaluation

8 pages

8/2/2021

Educational Evaluation

6 pages

8/2/2021

Occupational Therapy Evaluation

7 pages

8/2/2021

Speech and Language Evaluation

6 pages

8/9/2021

Physical Therapy Evaluation

5 pages

8/13/2021

Occupational Therapy Progress Report

2 pages

8/13/2021

Physical Therapy Progress Report

2 pages

Various Dates

Medical Accommodations Forms

3 pages

10/25/2021

IEP

17 pages

10/25/2021

Final Notice of Recommendation

1 page

12/2/2021

Email w/ Signed Final Notice of Recommendation

2 pages

2/1/2022

Speech and Language Therapy Progress Report

3 pages

2/3/2022

Physical Therapy Progress Report

2 pages

2/4/2022

Occupational Therapy Progress Report

2 pages

2/16/2022

Educational Progress Report

3 pages

PARENT EXHIBITS

A

12/7/2021

Due Process Complaint

5 pages

B

10/25/2021

IEP

17 pages

C 10/26/2021 Document from [REDACTED] 6 pages

D 10/15/2021 Letter from [REDACTED] 4 pages

E 11/6/2020 Document from [REDACTED] Child Neurology 3 pages

F 7/5/2021 Report from [REDACTED] 14 pages

G 1/15/2022 Email from [REDACTED] to [REDACTED] 2 pages

H 8/10/2021 Letter from Dr. [REDACTED] 2 pages

I 11/1/2021 Letter from Dr. [REDACTED] 1 page

J 8/20/2021 Letter from Dr. [REDACTED] 1 page

K 7/7/2020 Letter from Dr. [REDACTED] 2 pages

1 The Para, who started on January 26, 2022, quit by February 17, 2022, after [REDACTED] had only attended [REDACTED] for six days.2 Tr. p. 90:9-12. Since then, he has again been at home without services. Tr. p. 148:8-14, 149:19-25 – 150:1-10,