New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: Parent

Record Close Date: October 25, 2023

Hearing Officer: Guljit Kaur Bains, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED]

[REDACTED] [REDACTED] [REDACTED] [REDACTED]

For the Department of Education:

[REDACTED] [REDACTED] [REDACTED] [REDACTED]

On February 3, 2022, the parents ("Parent"), of [REDACTED] ("student"), filed a Due Process Complaint ("DPC") (IHO Ex. I) and on April 29, 2022, the Parent filed an Amended Due Process Complaint ("ADPC"), under the Individuals with Disabilities Education Act ("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 of the New York State Education Law. (P-Exhibit A) I was appointed as an impartial hearing officer ("IHO") on December 2, 2022, to hear this case.

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

BACKGROUND AND POSITIONS OF THE PARTIES

The student is classified as a student with a disability. His classification and eligibility for special education support and services are not in dispute. The ADPC raises issues regarding the 2021-2022 school year ("SY"). (P-Ex. A) Pursuant to the ADPC the Parents maintain that the district has failed to offer the student a free and appropriate public education ("FAPE") for the SY. The Parent brought this hearing challenging the appropriateness of the Department of Education's ("DOE") recommendations for the student during the SY, seeking reimbursement for payments the Parent made towards the private placement/ at the [REDACTED] ("Private School") from January through June of the SY as well as transportation costs, reimbursement for speech therapy sessions and to fund a Neuropsychological Evaluation to pinpoint the services David needs. The Parent maintains that the failure is both procedural and substantive in nature. (P-Ex. A) The DOE submits that the testimony and evidence presented in this hearing established that the district provided the student with a FAPE for the SY. Additionally, the evidence established that the unilateral placement obtained by the Parent for the student was not appropriate. It is the DOE's position that the Parent is not entitled to the requested relief of tuition at the Private School because it did not provide an educational benefit to the student, and the educational instruction was not tailored to meet the student's individual needs. (DOE closing brief) (D-Ex.'s 1- 20) The Parent submitted into evidence a documentary packet consisting of: various progress reports, two IEP's, Private School services, programs and contract with the Parent, ten day notice dated (01/20/22), Prior Written Notice ("PWN") and PWN following reconvene. The Parent also submitted various emails communications with the CPSE about the IEP, Independent Educational Evaluation ("IEE") and related services/ transportation services. Parent submitted affidavit and live testimony of two witnesses form the Private School and the Parent. (P-Ex." A-

CC) The Parent submitted a closing brief in support of their position. The District submitted into evidence: CPSE IEPs, first IEP dated 10/25/2021 with a Final Notice of Recommendation dated 10/25/2021 and second IEP dated 3/31/2022, PWN dated 03/31/22, PWN– Reevaluation dated 02/17/2022, PWN dated 2/17/2022, various progress reports, an anecdotal from Teacher, Special Education Itinerant Services ("SEIT") and Speech/Language Therapist, classroom observation, assorted emails, a Ten Day Notice letter receipt dated 02/09/22. The District presented an affidavit and live testimony from [REDACTED] , CPSE Administrator. The District also submitted a closing brief in support of their position.

FINDINGS OF FACT AND DECISIOND

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written Individualized Education Program ("IEP") (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). School districts are required to provide the services set forth in a student's IEP.

"The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (Application of a Student with a Disability, Appeal No. 21-019 at p. 6; 20 U.S.C. § 1415[f][3][E][i]). "A school district offers a FAPE 'by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction'" (Appeal No. 21-019 at p. 6, quoting Bd. of Educ.of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982)). "However, the 'IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP'" (Appeal No. 21-019 at p. 6, quoting Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 189)). "An IEP's adequacy turns on the student's unique circumstances" (Appeal No. 21-019 at p. 6; Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 1001 (2017)). "The IDEA ensures an 'appropriate' education, 'not one that provides everything that might be thought desirable by loving parents'" (Appeal No. 21- 019 at p. 6, quoting Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 6 873 F.2d 563, 567 (2d Cir. 1989) [citations omitted]). Moreover, the DOE is not required to "maximize" the potential of students with disabilities (Appeal No. 21-019 at p. 6; Rowley, 458 U.S. at 189, 199; Walczak, 142 F.3d at 132). "The DOE must provide 'an IEP that is "likely to produce progress, not regression," and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Appeal No. 21-019 at p. 6, quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130 [citations omitted]). "The IEP must be 'reasonably calculated to provide some "meaningful" benefit'" (Appeal No. 21-019 at p. 6, quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Endrew F., 137 S. Ct. at 1001; Rowley, 458 U.S. at 192). "The student's recommended program must also be provided in the least restrictive environment" ("LRE") (Appeal No. 21-019 at p. 7; 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]. "An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum" (Appeal No. 21-019 at p. 6; see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]). 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)).

The Provision of a FAPE "A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits" (Appeal No. 21-019 at p. 6, quoting Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir.7 2012]; Cerra, 427 F.3d at 192). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Appeal No. 21-019 at p. 6, quoting Walczak, 142 F.3d at 129, quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).

The Supreme Court has found that "[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances." Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE.

The parent asserts that she went back and forth with the CPSE trying to get more services. The Student's providers also recommended increases in his services. However, the CPSE refused to reconvene the IEP meeting. The Parent paid out of pocket for additional speech therapy sessions. Parent was concerned about the Student's development and chose to enroll him at the Private School, a private full-time special education program, in the winter of 2022. At the same time, she continued to work with the CPSE. In January 2022, she requested a new IEP meeting and Comprehensive Neuropsychological Evaluation to pinpoint the services the Student needed. The Parent continued to cooperate with the CPSE after the Student's enrollment at the Private School but found that they were unable to provide a program that would meet the Student's particular needs at this point in time. The CPSE also denied an Independent Comprehensive Neuropsychological Evaluation despite numerous requests by the Parent. The Parent communicated her concerns with the evaluations that CPSE had done to date, and her disagreement with the decision not to approve the Neuropsychological Evaluation. The Parent attended an IEP reconvene after the Student started attending the Private School, and the CPSE refused to recommend the level of support that the Student required at that time. The Parent visited the CPSE placement but found that it was not appropriate for the Student and found out they did not take her concerns as a Parent seriously. (Tr. 80-82) (P-Ex.'s B- CC) (Parent's closing brief)

The District asserts that the appropriate level program was recommended for the Student during the SY to help provide him with the support he needs needed in order to make progress to the goals that were developed for him. (DOE closing brief) (Tr. at 202) (D-Ex.'s 1- 20)

The DOE maintains that a procedurally appropriate IEP was created for the school year at issue. If it is determined that any procedural violations did occur, the DOE asserts that those violations are de minimis and do not in any way rise to a denial of FAPE. At the IEP meeting, comprised of the requisite members. Prior Written Notices were provided after the IEP meeting to apprise the Parent of the recommendations. The IEP was timely, as an IEP meeting was properly held. . (DOE closing brief) (Tr. at 202) (D-Ex.'s 1- 20)

The District asserts that it met its substantive obligations under the IDEA for SY. "The IEP created for the year at issue recommended a program that was tailored to the Student's specific needs." (DOE closing brief) ( D-Ex-20) "In October 25, 2021, the recommendation for the Student was to receive 5X60 SEIT, 3x30 occupational therapy, 2x45 physical therapy, 1x30 speech-language therapy was appropriate. The assertion that the IEP recommendation was inappropriate and unable to address the student's behavior is without merit." The team relied upon the following when making the recommendation "DAYC-2, Informed Clinical Opinion; SB5; Vineland Adaptive Behavior Scales-III; Behavioral Observation; Interview with Mother; Interview with Current Teacher; Interview with Last Year's Teacher, Preschool Language Scale5, Peabody Developmental Motor Scales (PDMS-II) Short Sensory Profile (filled out according to Teacher)" (DOE closing brief) (D- Ex. 20) (Tr. at 202) As reflected in the psychological evaluation, the students full-scale IQ was 72 which is indicative of moderate delay in cognition. (DOE Exhibit 3). The student did not technically qualify for speech based on the speech and language evaluation. His expressive language was average and auditory comprehension was low average according to standardized speech and language evaluation. (DOE Exhibit 20). Nonetheless, the team recommended speech due to parent concerns, general education teacher, speech therapist and informal assessment. (DOE Exhibit 20). March 31, 2022, was likewise appropriate. That IEP recommended a 12:1:2 program with related services of occupational therapy 3x30:1, physical therapy 2x45X1:1, speech-language therapy 3x30x1:1. The team used OT Progress Report, Anecdotally from classroom teacher, speech progress report, SEIT progress report, physical therapy progress report, and a BCBA report when creating their recommendation. (DOE Exhibit 20) An Integrated Co-Teaching setting was considered at the IEP meeting. (Transcript 212).

The DOE IEPs conform with all procedural and substantive legal requirements. An IEP recommendation shall include the following: i) present levels of academic achievement and functional performance and the individual needs of the student; ii) 'individual needs of the student' includes management needs that enable the student to benefit from instruction; iii) disability classification iv) measurable annual goal consistent with the students' needs and abilities; v) special education goals and services; and vi) statements of program recommendation. 8 NYCRR 200.4(d)(2)(i)-(vi).

The DOE presented credible testimony and extensive documentary evidence to support a finding that it offered the Student a FAPE for the SY. (D-Ex.'s 1-20) (Tr. at 202)

The DOE presented a case that clearly demonstrated that they considered this child's needs carefully and after extensive evaluations, reports and observations.

No further inquiry is required with respect to the further analysis of the appropriateness of the private school placement to meet the unique needs of the student, nor equitable factors.

The request that the DOE be directed to reimburse the cost of the student's 2021-2022 Private School placement is therefore denied.

In light of the above, I find that the record establishes the following:

1. The student was not denied a FAPE for the 2021-2022 school year. Additional relief sought with respect to transportation, services or a Neuropsychological Evaluation are denied based on the evidence presented and the full record.

ORDERED:

IT IS HEREBY ORDERED THAT:

1. Reimbursement of tuition in the amount for the student's enrollment at the Private School for the SY is denied;

2. The Due Process complaint herein for the SY is therefore dismissed.

Dated: October 26, 2023

Guljit Kaur Bains

DOCUMENTS ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exh. Date Description # of Pages Amended Due Process Complaint 04/29/22

10 pages

B. Ten Day Notice 01/20/22

3 pages

C. [REDACTED] Enrollment Contract 01/21/22

4 pages

D. [REDACTED] Enrollment Contract Addendum 05/04/22

1 page

E. [REDACTED] Tuition Affidavit 05/19/22

1 page

F. [REDACTED] Attendance Record 03/31/22

3 pages

G. [REDACTED] Program Description 2021-2022 2 pages

H. [REDACTED] Learning Plan 2021-2022 (1 page)

I. [REDACTED] Areas of Therapeutic Focus 2021-2022 3 pages

J. [REDACTED] Student Schedule 2021-2022 1 page

K. Individualized Education Program 10/25/21 20 pages

L. Individualized Education Program with Transport Update 05/11/22 31 pages

M. Prior Written Notice 02/17/22

2 pages

N. Prior Written Notice Following IEP Reconvene 03/31/22

2 pages

O. OMNI Progress Report 01/30/21

8 pages

P. OMNI Teacher Reports 11/30/21 14 pages

Q. OMNI Occupational Therapy Evaluation 10/07/21

3 pages

R. OMNI Speech Therapy Evaluation 10/11/21

4 pages

S. OMNI Physical Therapy Evaluation 10/12/21

4 pages

T. Speech Language therapy Invoice of [REDACTED] 01/14/22

1 page

U. Parent Emails to CPSE re: IEE, IEP, and Related Services Various 10 pages

V. Emails to CPSE re: Independent Evaluation 02/17/22

2 pages

W. Parent Emails to CPSE re: Related Services Various 3 pages

X. Emails to CPSE re: Transportation Services Various 3 pages

Y. Dr. [REDACTED] Letter 11/15/21

1 page

Z. Dr. [REDACTED] Letter 10/28/21

2 pages

AA. Affidavit of [REDACTED] 05/18/22 4 pages

BB. Affidavit of [REDACTED] 08/09/22 4 pages

CC. Affidavit of [REDACTED] THE PARENT WITNESSES: Name Title/Relationship 05/16/22 [REDACTED] Parent [REDACTED] [REDACTED] Director of Lower School, [REDACTED] [REDACTED] Special Education Teacher, [REDACTED] 3 pages

DOE EXHIBITS

1. Number Document Date Number o CPSE Individualized Education Program (IEP) 10/25/21

21 pages DOE

2. Final Notice of Recommendation 10/25/21

2 pages DOE

4. 3 Preschool Assessments October and 76 November 2021 Neurological Report 10/28/21 1 page DOE

5. Prior Written Notice-Reevaluation 2/17/2022 2 pages DOE

6. CPSE Individual Education Program (IEP) 3/31/2022 31 pages DOE

7. Prior Written Notice 3/31/2021 2 pages DOE

8. Occupational Therapy Progress Report 2/7/2022 2 pages DOE

9. Anecdotals by SEIT Provider November 2021 3 pages DOE

10. Speech and Language Therapy Progress Report 1/30/2022 2 pages DOE

11. SEIT Progress Report 1/30/2022 4 pages DOE

12. Anecdotals by Speech and Language Therapist October and November 2021 2 pages DOE

13. Classroom Observation 11/30/2021 2 pages DOE

14. Anecdotals by Teacher November 2021 3 pages DOE

15. Email: Services in new School 2/16/2022 2 pages DOE

16. Email: Recommendation of [REDACTED] 5/16/2022 1 page DOE

17. Email: [REDACTED] Teacher 11/8/2021 1 page DOE

18. Prior Written Notice 2/17/22

2 pages DOE

19. Ten Day Notice Reply 2/9/2022 1 page DOE

20. Affidavit [REDACTED] 5/25/23

3 pages DOE

PARENT CLOSING BRIEF 13pages

DOE CLOSING BRIEF 11 pages

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.