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Special Education Law
DECISIONMixed ResultIHO Case No. 225031

New York City Department of Education, Impartial Hearing Decision

July 3, 2022·Jean Marie Brescia·Representative

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 570875 / NYC # 225031

FINDINGS OF FACT AND DECISION

Case Number: 225031

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: April 13, 2022

April 28, 2022

May 18, 2022

June 7, 2022

Actual Record Close Date: July 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 13, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

April 28, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

May 18, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Parent

[REDACTED], SETSS Provider

[REDACTED], SETSS Provider For the Department:

[REDACTED], District Representative

[REDACTED], District Representative

June 7, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent For the Department:

[REDACTED], District Representative

On March 14, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parents requested the hearing on March 9, 2022 in order to seek an independent neuropsychological evaluation at public expense and the addition of a full-time 1:1 paraprofessional to [REDACTED]’s Individualized Education Services Program (“IESP”). Ex. A.

A pre-hearing conference was conducted on April 13, 2022. The hearing was conducted on April 28, May 18 and June 7, 2022. The Department did not present the testimony of witnesses but did offer documents in evidence and presented arguments.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by Orders of Extension dated April 13 and June 30, 2022. The record closed on July 1, 2022, upon the hearing officer’s review of the transcript of the last day of hearing, and the Actual Record Close Date is July 1, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Claims Asserted in the Due Process Complaint The Due Process Complaint alleges that: (a) an independent evaluation is necessary because [REDACTED]’s “behaviors, memory, cognitive abilities, verbal functioning, and other areas needs to be appropriately looked at in order to develop a more appropriate program;” (b) [REDACTED] needs a paraprofessional to assist him with “behavior issues, which at present are preventing him from receiving an appropriate education;” and (c) the Department “failed to provide an adequate [IESP] for [[REDACTED]] for the 2021-2022 school year.” Ex. A at 1.

As relief, [REDACTED]’s parents seek an independent neuropsychological evaluation at public expense and a full-time 1:1 paraprofessional “for behavior, which should be added to [[REDACTED]’s] IESP.” Ex. A at 1.

Findings of Fact

  • • [REDACTED] is a [REDACTED] year-old boy whose disability, for the purposes of the IDEA, is classified as other health impairment. Ex. 1 at 1.
  • • [REDACTED] attends a religious school in a mainstream classroom of approximately 25 students, a teacher, an assistant and an aide. Tr. 48, 60-61.
  • • [REDACTED] was evaluated for CPSE services in November 2019 due to concerns about his communication, focusing, coping and fine motor skills. Ex. 3 at 1. Parent and teacher reported that [REDACTED] was impulsive, could become aggressive when playing, tantrummed, and had difficulties with focus and following multistep directions. Ex. 3 at 1.
  • • A bilingual psychological evaluation revealed that [REDACTED]’s full scale IQ score was in the average range, verbal IQ score was in the low average range and nonverbal IQ score was in the average range. Ex. 3 at 2. On the Vineland, [REDACTED] demonstrated delays on receptive and expressive language, socialization and fine motor delays. Ex. 3 at 3.
  • • During testing, [REDACTED] was impulsive, impatient, did not always listen to directions, was self-directed and needed redirecting and refocusing to tasks. Ex. 3 at 5.
  • • [REDACTED] received SEIT services and related services as a preschool student pursuant to a CPSE IEP. Ex. 1 at 1.
  • • For the 2021-2022 school year, [REDACTED]’s parents planned to parentally place [REDACTED] in a religious school for [REDACTED]. Ex. 1 at 1.
  • • The CSE convened on May 14, 2021 to develop [REDACTED]’s “Turning 5” IESP. Ex. 1. [REDACTED]’s father attended this meeting, as did an individual from [REDACTED]’s preschool. Ex. 2.
  • • At the meeting, the SEIT reported that [REDACTED] was “self-directed,” fidgety, had difficulty sitting still, disrupted his peers, and ran around the classroom. With positive reinforcement, his behavior was beginning to improve. Ex. 1 at 1; see also Ex. 1 at 3.
  • • The IESP notes that [REDACTED] presented with mild delays in receptive and expressive communication skills, language processing weaknesses, difficulties following directions, and limitations in attention and focusing. Ex. 1 at 2.
  • • At the meeting, [REDACTED]’s parent requested SETSS for [REDACTED] to help him stay on task and pay attention in class. Ex. 1 at 2.
  • • The CSE recommended that [REDACTED] receive SETSS for ten periods per week as a group service, speech-language therapy for two 30-minute sessions per week individually, and occupational therapy for two 30-minute sessions per week individually. Ex. 1 at 9.
  • • Three SETSS providers have worked with [REDACTED] in school this school year. Tr. 50. One SETSS provider worked with him for two hours per week on “behavior therapy and social skills.” Tr. 42, 49. Another SETSS provider worked with [REDACTED] for [REDACTED] hours per week; and the third SETSS provider appears to have worked with him for three hours per week. Tr. 50.
  • • In school, [REDACTED] is “self-directed,” “struggles very much with following authority,” does not follow directions, and has difficulties remaining seated. Tr. 44; see also Tr. 71-72. As a result, he is not responding to classroom instruction and “falling behind academically.” Tr. 44.
  • • [REDACTED] also becomes dysregulated at school and will throw things, yell, leave the classroom, and run away. Tr. 44-45, 71-72.
  • • The SETSS providers created a positive reinforcement system for [REDACTED] for the SETSS providers and the classroom teachers to utilize with [REDACTED]. Tr. 50-51, 53-54.
  • • The SETSS providers who testified opined that a full-time 1:1 paraprofessional with the ten hours per week of SETSS would be appropriate for [REDACTED] and necessary to keep him safe. Tr. 48-49, 63-64, 74-75.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Are [REDACTED]’s Parent Entitled to an Independent Neuropsychological Evaluation of [REDACTED] at Public Expense?

The regulations relevant to the IEE request in this proceeding state that: “[i]f the parent disagrees with an evaluation obtained the school district, the parent has a right to obtain an independent educational evaluation at public expense.” However, “a parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.” Id. If a parent requests an independent educational evaluation at public expense, “the school district must, without unnecessary delay, either ensure that an independent education evaluation is provided at public expense” or initiate an impartial hearing “to show that its evaluation is appropriate, or that the evaluation obtained by the parent does not meet the school district criteria.” 8 N.Y.C.R.R. §200.5(g)(1)(iv); see also Pajaro Valley Unified School District v. L.S., 47 IDELR 12 (N.D. Cal. Dec. 15, 2006); Application of the New York City Department of Education, Appeal No. 20-117 at pp. 13-15; Application of the Board of Education, Appeal No. 11-122 at pp. 16-17.

The key legal issue here is whether [REDACTED]’s parents stated their disagreement with the November 2019 evaluation, and the Department argued that [REDACTED]’s parents were not disputing the Department’s evaluations. Tr. 28-29, 32. A parent’s right to an IEE at public expense “is triggered” when a parent disagrees with a school district’s evaluation. Trumbull, 975 F.3d at 158, 163 (parent must express disagreement with a school district’s evaluation as a prerequisite to obtaining an IEE at public expense). [REDACTED]’s parent’s Due Process Complaint does not reference the November 2019 evaluation or otherwise express disagreement with a DOE evaluation. With respect to this case, it is also important to note that a parent may disagree the “scope” of a district’s evaluation. See Trumbull, 975 F.3d at 165 (“Nothing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”).[1] While the language of the Due Process Complaint references the “scope” of an evaluation that [REDACTED]’s parents argue should occur, it does not state disagreement with a DOE evaluation that has already occurred, which is the “trigger” that the Second Circuit requires in Trumbull. As a result of the above legal conclusions, I am not in a position to award the requested IEE at public expense.

On a practical front, the Department agreed that [REDACTED] should have a neuropsychological evaluation; however, the Department argued that [REDACTED]’s parents should send a letter to the CSE requesting a new evaluation or inform the CSE that [REDACTED] was experiencing negative behaviors in order for the CSE to conduct new testing and reconvene to consider a recommendation for a paraprofessional for [REDACTED]. Tr. 97. [REDACTED]’s parents could have followed the path outlined by the Department at the hearing. They did not and elected, as is their right, to file a Due Process Complaint—but that Complaint did not disagree, as per Trumbull, with the Department’s evaluation.

However, a hearing officer may request “an independent educational evaluation as part of a hearing” and “the cost of the evaluation must be at public expense.” 8 N.Y.C.R.R. §200.5(g)(2). I have here a child who, at this time, should have a comprehensive evaluation due to the uncontroverted dysfunction he is demonstrating at this time in the school setting. As per my authority as a hearing officer, I am ordering the Department to authorize payment of a neuropsychological evaluation of [REDACTED]. I find that a neuropsychological evaluation is necessary for [REDACTED] at this time because such an evaluation should probe into his impulsivity, attentional and processing challenges in a more in-depth manner than a psychological evaluation. I also note that [REDACTED] is past due for an annual review and that this evaluation should be conducted promptly in order to be considered at the annual review.

Did the Department Deny [REDACTED] a FAPE by Not Offering Him a 1:1 Paraprofessional?

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The Second Circuit requires that the appropriateness of an IEP be assessed as of the time of its creation. R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012).

I must also consider that [REDACTED] is (and for the time being remains) a “dually-enrolled” student, and, under New York State Education Law § 3602-c, parents of students with disabilities have the right and ability to select a nonpublic school willing to enroll their child, and places the burden of developing and providing appropriate special education programming upon the school district in which such school is located. The school district must develop an appropriate program for the student in the environment in which the student will receive his or her education (i.e. – the nonpublic school). Section 3602-c expressly states that a school district of location’s CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP].” Education Law § 3602-c(2)(b)(1). “The committee on special education shall assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. See, e.g., Application of a Student with a Disability, Appeal No. 21-245 at pp. 10-18 (description of districts’ responsibilities under § 3602-c and interplay with IDEA); see also Application of a Student with a Disability, Office of State Review No. 20-094; Application of a Student with a Disability, Office of State Review No. 20-087. See also Bd. of Educ. of the Bayshore Union Free Sch. Dist. v. Thomas K., 14 N.Y. 3d 289 (2010) (relevance of individualized educational needs of dually-enrolled students).

When a CSE is developing an IEP or an IESP for a student, it must consider the most recent evaluations of the student as well as input at the IEP/IESP meeting from meeting participants, including the student’s parents, teachers and other individuals with relevant knowledge of the student. See, e.g., L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 110 (2d Cir. 2016); 20 U.S.C. § 1414(c)(1)(A); 8 N.Y.C. R.R. § 200.4(d)(2); see also Education Law § 3602-c(2)(b)(1) (CSE “shall develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]”).

[REDACTED]’s parents request that, at this time, a full-time 1:1 paraprofessional “be added to [[REDACTED]’s] IESP.” Ex. A at 1. The Department argues that at the time of the development of the IESP, (a) there was no documentation submitted to support the need for a 1:1 paraprofessional for [REDACTED] and (b) the information available to the CSE did not indicate that [REDACTED] was experiencing the negative behaviors described by the witnesses at the hearing. Tr. 14-15, 97. The record demonstrates that amongst the evaluative information available to the CSE at the time of the development of [REDACTED]’s IESP there was insufficient information upon which to base a “reasonably calculated” recommendation of a full-time 1:1 paraprofessional for [REDACTED]. See R.E., 694 F.3d at 189-90. Rather, the information available to the CSE indicated that SEIT services and positive reinforcement was having a positive impact on [REDACTED]’s classroom behaviors in preschool; as a result, the CSE recommended ten hours per week of SETSS for [REDACTED] with related services. The current observations and opinions of [REDACTED]’s SETSS providers, provided at the hearing, about [REDACTED]’s current behaviors and need for a paraprofessional were unavailable for consideration by the CSE at the May 2021 IESP meeting. As a result, the request for a full-time 1:1 paraprofessional must be denied at this time.

I should note that it is important for the CSE to consider appropriate programming, services and interventions for [REDACTED]; and it is important such programming, services and interventions be deliberated, in the first instance, at a CSE meeting precisely because these are complex issues and involve considerations of, among other things, [REDACTED]’s needs and how to address those needs in light of the interrelatedness of his programming, services and interventions, his educational goals, and his least restrictive educational environment.

Therefore, for all the above reasons, it is ORDERED that:

1. The Department of Education shall authorize funding for an independent neuropsychological evaluation of [REDACTED].

2. The request for a full-time 1:1 paraprofessional is denied at this time.

Dated: July 3, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Parents’ Exhibits

A 12/8/2021 Impartial Hearing Request 4 pages

B 5/14/2021 Individualized Education Services Program 11 pages

Department of Education Exhibits

1 5/14/2021 Individualized Education Services Program 12 pages

2 5/14/2021 Attendance Page 1 page

3 11/15/2019 Psychological Evaluation 6 pages

Footnotes

[1] I do note that the IDEA’s two-year statute of limitations does not apply to parental IEE requests. See Trumbull, 975 F.3d at 168-170. Thus, the statute of limitations is not an issue in this case.