New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 567459 - NYC: 222602

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: Parents

Record Close Date: October 8, 2022

Hearing Officer: Harriet Gewirtz, Esq.

On December 9, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on December 10, 2021.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is an REDACTED-year-old male student who was not classified as a student with a disability. His classification and eligibility for special education supports and services are in dispute. The Parents unilaterally placed the Student at the REDACTED School for the 2021-2022 school year. The Parents now seek tuition reimbursement for the cost of the REDACTED for the 2021-2022 school year placement. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2021-2022 year, and thus failed to offer the Student a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED placement is appropriate and that equitable factors support the tuition reimbursement claim.

The DOE asserts that it provided the Student is ineligible for special education services, and therefore was not denied a FAPE. The DOE and presented witnesses and evidence. The DOE submitted a closing brief.

The Parents submitted a documentary evidence package, which included the affidavit testimony of two witnesses. The Parents submitted a closing brief.

FINDINGS OF FACT AND DECISION

A school district is not obligated to develop an education plan that maximizes the potential of a student. Bd. of Educ. v. Rowley, 458 U.S. 176, 197 (1982). Only students with disabilities are entitled to special education services. “The IDEA defines a "child with a disability" as a child with specific physical, mental, or emotional conditions, including a learning disability, ‘who, by reason thereof, needs special education and related services.’" Application of a Student Suspected of Having a Disability, Appeal No. 19-057 at 16 (citing 20 U.S.C. § 1401(3)(A); Educ. Law § 4401(1)).

To be eligible for special education services, a student must have one of thirteen special education classifications. 34 C.F.R. § 300.8(c). These classifications are: (1) Autism, (2) deafness,

(3) deaf-blindness, (4) emotional disturbance, (5) hearing impairment, (6) intellectual disability,

(7) multiple disabilities, (8) orthopedic impairment, (9) other health-impairment, (10), speech or language impairment, (11) traumatic brain injury, (12) visual impairment, and (13) learning disability. 34 C.F.R. § 300.8(c).

Here the team had sufficient material to assess whether the Student could appropriately be classified with one of the aforementioned disabilities. The DOE had the testing data from the November 2020 neuropsychological evaluation, as well as updated written reports from the Neuropsychologist and the Student’s Psychologist, and current verbal reports provided the Student’s parents and school.

The DOE witness, Ms. REDACTED explained the testing scores of the Student’s neuropsychological evaluation (See Ex 9, ¶ 13 through 16). Based on the evaluative material presented, the overall scores indicated that the Student had very high academic and cognitive scores in all areas, but for Spelling. See Ex 9, ¶ 11 and Ex 74 through 7-5. Ms. REDACTED further testified that the Student’s present level of academic functioning that the school reported the Student was performing at or above grade level in reading, writing and math, all of which was memorialized, in the Present Levels of Performance and Individual Needs. See Ex 7-5 through 7-

7. See Ex. 9, ¶ 17a through 17d

Ms. REDACTED explained that the most significant area of deficit identified was the intersect of the Student’s three diagnoses REDACTED Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”) and Anxiety that were “acting in concert to influence REDACTED’s behavioral and emotional functioning in multiple settings, and they also are affecting aspects of REDACTED’s schoolwork, (See Ex 3-15),” as noted by the Neuropsychological Evaluation. As such, Ms. REDACTED explained that the CSE made more extensive inquiry into the Student’s current social-emotional profile. See Ex 9, ¶ 21. Ms. REDACTED relayed the information provided by the teacher was that “REDACTED enjoys being “silly” with peers,” which meant he could “fall out of his chair, be loud or disruptive.” See Ex 9, ¶ 18 and Ex7-7. It was memorialized that he does need to be redirected, by being asked to leave the group or take a break to calm down, which could make him feel “bad.” See Ex 9, ¶ 18 and Ex7-7. While he did not have a behavior plan at the school, the Student benefits from certain strategies, such as using sensory tools like putty to stay focused, breaks, teacher check-ins and prompts/reminders. See Ex 9, ¶ 18 and ¶ 19 and Ex7-7. Ms. REDACTED explained that the information shared at the meeting about did not indicate that the student had behaviors negatively affecting his ability to achieve grade-level performance, and thus, was determined to be ineligible for special education services. See Ex 9, ¶ 22 and ¶ 23.

The SRO has held in cases similar to this student’s case that “Therefore, the greater weight of the testimonial and documentary evidence contained in the hearing record leads to the conclusion that the student's impulsive, defiant, and aggressive behaviors, and inappropriate communications with others, although certainly cause for concern, did not cause him to suffer academically and therefore did not adversely affect his educational performance (C.B., 322 Fed. App'x at 22; N.C. v. Bedford Cent. Sch. Dist., 300 Fed. App'x 11, 13 [2d Cir. Nov. 12, 2008]; Maus, 688 F. Supp. 2d at 297-98; A.J., 679 F. Supp. 2d at 308-11).

Accordingly, the hearing record supports the IHO's determination that the student does not meet the criteria for special education eligibility as a student with an emotional disturbance.” See SRO 21-108.

ANY PROCEDURAL DEFECTS, DID NOT RESULT IN A DENIAL OF FAPE

The District acknowledges that it did not timely evaluate or hold the IEP meeting pursuant to the above regulations, however, this failure did not affect the Student’s right to a FAPE, as the Student was properly determined to be ineligible for special education services.

SRO 21-108:

“Where a district fails to adhere to the requisite timelines for evaluating a student and creating an educational program post-referral, relief for such a procedural violation of the IDEA is warranted only if the violation affected the student's right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]; see A.H. v. New York City Dep't of Educ., 394 Fed. App'x 718, 720 [2d Cir. Aug. 16, 2010]; Jusino v. New York City Dep't of Educ., 2016 WL 9649880, at *6 [E.D.N.Y. Aug. 8, 2016], aff'd 700 Fed. App'x 25 [2d Cir. July 7, 2017]; A.M. v. New York City Dep't of Educ., 840 F. Supp. 2d 660, 688 [E.D.N.Y. 2012], aff'd, 513 Fed. App'x 95 [2d Cir.

Mar. 12, 2013]; Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 294, 300 [S.D.N.Y. 2010]; M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 501 [S.D.N.Y. 2008]; Warton v. New Fairfield Bd. of Educ., 217 F. Supp. 2d 261, 279 [D. Conn. 2002]). Accordingly, with the district's concession that it failed to timely evaluate the student, the next question is whether the district's failure deprived the student of a FAPE, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]). As discussed below, the December 2019 CSE's determination that the student was not eligible for special education is supported by the hearing record. Accordingly, although the district did not conduct the initial evaluation of the student within the applicable timelines, the timing of the evaluations cannot be said to have deprived the student of a FAPE or educational benefits (see Burnett v. San Mateo Foster City Sch. Dist., 739 Fed. Appx. 870, 872 [9th Cir. 2018] ["When a student is ineligible for special education there can be no loss of educational opportunities"]).”

Moreover, “procedural defects alone do not constitute a violation of the right to a [free appropriate public education] unless they result in the loss of an educational opportunity.” Adam

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Based on the foregoing the procedural violations did not rise to the level of a violation of FAPE Further there is no substantive denial of a FAPE as the DOE correctly determined the child was not eligible for special education services for the reasons stated therein.

ORDER

IT IS HEREBY ORDERED that the Due Process complaint for the 2021-2022 school year is dismissed.

Dated: October 8, 2022

_____________________

Harriet Gewirtz

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.

DOCUMENTS ENTERED INTO THE RECORD

• • Parent Exhibits
• • Request for Impartial Hearing 12/9/21 6
• • Ten Day Notice 8/25/21 3
• • Email requesting IEP 6/28/21 1
• • Neuropsychological Evaluation November 2020 25
• • Neuropsychological update August 2021 3
• • Letter from psychologist 10/8/21 2
• • Report Card Fall 2021 17
• • Academic Progress Report Fall 2021 4
• • Academic Progress Report Spring 2022 13
• • Attendance 21-22 21-22 SY 1
• • Tuition Affidavit 11/3/21 1
• • Tuition Contract 6/25/21 6
• • Email to CSE 11/6/21 1
• • Affidavit from
• • REDACTED Prep 6
• • Affidavit from the Parent
• • DOE Exhibits 12/15/2021 Social History Evaluation 3 03/30/2022 Classroom Observation 2 11/20/2020 and 11/23/2020 Neuropsychological Evaluation 25 08/25/2021 Summary of Ongoing Consultation (Neuropsychological)

10/08/2021

Psychologist Letter

2

04/21/2022

Attendance Page

1

04/14/2022

Ineligible Special Education Services Letter and Present Levels of Performance and Individual Needs

8

05/09/2022

Prior Written Notice

06/17/2022

Witness Affidavit of REDACTED REDACTED