New York City Department of Education, Impartial Hearing Decision

NYSED # 571672 / NYC # 225602

FINDINGS OF FACT AND DECISION

Case Number: 225602

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.,

Home District # REDACTED

Service District # REDACTED

Impartial Hearing Officer: Dr. Oren Varnai, Esq.

Date of Filing: 03/31/2022

Hearing Requested by: Parent

Dated of Hearing: 08/01/2022; 08/17/2022

Record Close Date: 9/9/2022

Date of Decision: 9/12/2022

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:

For the Student:

• • REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s Attorney”)
• • REDACTED (hereinafter referred to as “the Parent”).
• • REDACTED, Principal at REDACTED School (hereinafter referred to as “Private School Principal”)

For the Department of Education (“DOE”):

• • REDACTED, Esq., appeared on behalf of the DOE, (hereinafter referred to as “DOE’s Attorney”).
• • REDACTED, School Psychologist at CSE- REDACTED (hereinafter referred to as “School Psychologist”).
• • REDACTED, Special Education Teacher at CSE (hereinafter referred to as “CSE Special Education Teacher”).
• • REDACTED, REDACTED Grade Teacher (hereinafter referred to as “Private School Teacher”).

Appendix of Redacted Information

Private School – The REDACTED School

Public School – P.S. REDACTED

Head Teacher – REDACTED, REDACTED School

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED, a Minor, by and through his/her Parent(s),

PETITIONER FINDINGS OF FACT AND DECISION

against Case # 225602 THE NEW YORK CITY Dr. Oren Varnai, Esq.

DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.

The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.

II. Background and Procedural History

• • Due Process Complaint Notice Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/31/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year, by, among other things: failure to offer a procedurally valid and substantively appropriate Individualized Education Program (“IEP”); failure to conduct adequate evaluations and to evaluate Student in all areas of his suspected disability; failure to adequately identify Student’s present levels of performance and to address his learning needs; failure to adequately consult Student’s parents and school representatives regarding its recommendations, including the development of appropriate, measurable goals and short-term objectives for the 2021-2022 school year; and failure to recommend a special education program and related services specifically designed to meet Student’s unique needs for the 2021-2022 school year.

Parent requested tuition reimbursement of Student’s summer program for the 2022-2023 school year but withdrew that portion of their claim during the hearing, and as indicated in Parent’s closing brief.^[1]

During the 2021-2022 school year, the year in which Parent filed the DPC, Student was REDACTED years old with an Autism diagnosis.^[2]

A Pre-Hearing Conference (“PHC”) was held on 6/23/2022, whereby the Due Process Hearing (“DPH”) was scheduled. On 7/21/2022, Parent’s Attorney notified IHO that Parent would not be available to testify on the scheduled DPH date. After several inquiries, it was disclosed that Parent’s Attorney did not make Parent aware of the DPH until 7/19/2022—nearly a month after the PHC—and Parent had already scheduled a family vacation abroad. Even though the unavailability of the witness was foreseeable, IHO granted an extension of the timeline to ensure Parent’s testimony would be received.^[3] The DPH was held on 8/1/2022 and 8/17/2022.

The Parties elected to submit closing briefs, which were due on 8/29/2022.^[4] Parent’s Attorney timely submitted the brief, but DOE did not. On 9/3/2022,^[5] IHO emailed DOE’s Attorney to inquire whether he would submit his brief, but there was no response. On 9/7/2022, IHO phoned DOE’s Attorney’s listed number in his email signature, spoke with DOE Attorney’s supervisor, and IHO left a message with respect to the brief’s submission. IHO memorialized the ex parte phone call in an email to the Parties. On 9/8/2022, DOE Attorney emailed IHO and Parent’s Attorney indicating that he had a family medical emergency that prevented him from completing his work, and that he would submit the brief by end of business that same day. Parent’s Attorney requested an “offer of proof” for the delay and an opportunity to submit a response to the late submission; IHO granted the request for the Parent’s Attorney’s response. DOE’s Attorney submitted his closing brief at 8:02 PM on 9/8/2022.^[6] On 9/9/2022, Parent’s Attorney emailed the Parties to “confirm” that IHO would not accept DOE Attorney’s brief as it was not submitted by “close of business” on 9/8/2022. IHO responded to the Parties that the DOE’s brief would not be accepted because it was late for a second time and closed the record.

III. Finding of Facts and Decision^[7]

• • FAPE

The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (1) to ensure that students with disabilities have available to them a FAPE 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) to ensure that the rights of students with disabilities and parents of such students are protected.^[8] The burden of proof is on the school district during 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.^[9]

A free and appropriate public education can be said to be 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.^[10] "[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."^[11] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."^[12]

Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"^[13] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.^[14] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.^[15]

An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.^[16] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"^[17] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."^[18] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"^[19] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"^[20] is what is required. School districts are not required to "maximize" the potential of students with disabilities,^[21] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"^[22] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"^[23] and designed to be provided in the least restrictive environment (“LRE”).^[24] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,^[25] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum^[26] through the use of appropriate special education services.^[27] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."^[28]

• • The CSE Was Validly Constituted Parent’s claim that the CSE did not include Student’s special education teacher^[29] in conformity with 8 NYCRR 200.3(a)(1)(iii). The CSE Special Education Teacher participated in the CSE meeting as indicated in both the IEP^[30] and the IEP meeting notes,^[31] testified she is a “special education teacher assigned to work at the Committee on Special Education,”^[32] and that she has “25 years”^[33] experience. In addition, the IEP indicates that Student’s Head Teacher from the Private School participated, and Parent also testified that Head Teacher attended and participated in the CSE meeting per Parent’s request.^[34]

Although there is no evidence in the record that Head Teacher -- who is also Student’s social studies teacher^[35]--is Student’s special education teacher as defined in 8 NYCRR 200.3(a)(1)(iii), I find that the DOE complied with the CSE constitution requirements. Even if there were a procedural violation of the CSE constitution—and I find there is not one—this procedural violation alone did not, in and of itself, impede Student’s right to a FAPE, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or cause a deprivation of educational benefits.^[36]

• • The Absence of a Behavioral Intervention Plan Did Not Deprive Student of a FAPE The IDEA requires CSEs to consider special factors when developing an IEP. One of those factors is whether the Student’s behavior impedes his or her learning, or the learning of other students in the class, and requires the consideration of positive behavioral interventions, supports, or strategies to address the behaviors.^[37] The IEP must identify the supplementary aids and services required in order to offer Student with an appropriate educational program.^[38]

A “[f]unctional behavioral assessment means the process of determining why the student engages in behaviors that impede learning and how the student's behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it.”^[39]

An FBA must include a baseline that delineates the "frequency, duration, intensity and/or latency across activities, settings, people and times of the day," so that a BIP (if required) may be developed in that it "addresses antecedent behaviors, reinforcing consequences of the behavior, recommendations for teaching alternative skills or behaviors and an assessment of student preferences for reinforcement."^[40] The Second Circuit explained that "[t]he failure to conduct an adequate FBA is a serious procedural violation because it may prevent the CSE from obtaining necessary information about the student's behaviors, leading to their being addressed in the IEP inadequately or not at all,"^[41] and a “failure to conduct an FBA is a procedural violation, but that it does not rise to the level of a denial of a FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it.”^[42]

CSE Special Education Teacher testified that at the time of the CSE meeting Student previously had a BIP in place, and that he had interfering behaviors that affected his ability to learn in the classroom.^[43] The reference to these interfering behaviors relates to the prior need for a BIP, and the CSE did not recommend a BIP for the 2021-2022 school year.^[44] CSE Special Education Teacher further testified that a BIP is a formal plan, which needed to be distinguished from a behavioral plan that addresses Student’s interfering behaviors.^[45] I find CSE Special Education Teacher’s testimony credible.

There are several references to Student’s behavior in the classroom. The English and Language Arts (“ELA”) teacher indicates that Student continues to make progress, and that he “benefits from his individualized behavior chart.”^[46] Student’s math teacher described him as doing a “great job” and that he benefits when “teachers refer[] to his behavior chart,”^[47] and that, specifically for math, Student has a “[b]ehavior plan which requires him to check in with teacher.”^[48] Student’s social studies teacher explained that states that his “behavior plan helps [him] stay motivated;”^[49] in writing, “[t]eachers refer to the goas on [Student’s] behavior plan.”^[50]

School Psychologist testified as to Student’s strengths and weaknesses,^[51] which were reflected in the management section of the IEP to address Student’s needs.^[52] I find School Psychologist’s testimony credible. Student’s Present Levels of Performance and Individual Needs section indicated that Student “used to demonstrate anxiety, but he is not currently displaying anxious behaviors,” and that if Student “does not have structure he can engage in distracting behaviors.”^[53] In his annual goals for speech and counseling, Student’s behaviors are addressed. In the Academic Needs section of the CSE Meeting Minutes, Student is described as having “a behavior plan which requires him to check in with teachers,”^[54] reiterates that Student “is not currently displaying anxious behaviors,”^[55] and that Student “is currently displaying off task behavior 1-2 per period during non-preferred activities [which] typically lasts 2-20 minutes while at home, [and] does not happen as frequently while he is in person at school. When it happens at school these off task behaviors last about 2-5 minutes;”^[56] “[t]hese behaviors of concern occur when [Student] is at home.”^[57]

Although Student does not have a formal BIP in place, the CSE determined that a BIP was not needed. Student’s behavior strategies are used throughout his IEP and revolve around Student’s redirection when he engages in off-task behaviors, which is the purpose of the IEP-recommended paraprofessional. The Management Needs section of the IEP address Student’s needs in multiple areas, and indicates that he “requires adult support, previewing of information, repetition, and reminders to continue progressing…”^[58] In Parent’s first Ten-Day Notice (“TDN-1”),^[59] Parent objected to the lack of an FBA in the IEP. DOE provided Student with a Notice of Recommendation^[60] and placement at Public School. Parent sent a second, amended, TDN^[61] (“TDN-2”) objecting to the recommendation, and it was this TDN that focused on the absence of a BIP, and that the recommended interventions strategies failed to address Student’s needs.^[62] The CSE recommendation was in line with Parent’s wishes, except for using a paraprofessional, which Parent believed should be replaced with a special education teacher.^[63] “The parents and school were in agreement with the goals proposed …[and] with the related services and the ratios, frequencies, and goals agreed upon during the meeting.”^[64] Student’s Head Teacher from Private School was present, described Student’s behavioral supports at the Private School,^[65] but there is no evidence she voiced any objections or concerns with respect to the IEP, in general, or the lack of a formal FBA/BIP, specifically.^[66]

Parent testified that when Student is upset during instruction he can have “a large reaction” which means Student “would start screaming … being unsafe with his body…[and] banging on his desk.”^[67] Parent described a “small behavior” in the same way, and that Student would “have to take a body break, or he will have to go have water, or he will have to go and be, you know, two minutes outside the class.”^[68] Parent’s testimony was with respect to addressing Student’s behavior through a second teacher who would “immediately go to [Student] and help him troubleshoot in the moment preventing that from escalating to a big reaction.”^[69] Student has never harmed another student, himself, or teacher, in the classroom.^[70]

Parent’s testimony as to Student’s needs is in accordance with Student’s IEP recommendations outlined in the Management Needs section, which mandates:

“Body breaks, Support to improve social interactions, Multi-sensory learning opportunities, Opportunities to practice skills in a real-life context, Social scripts to facilitate improved awareness of social norms, Support relating to abstract ways of thinking and problem-solving for application in real-world contexts, Structure, Repetition and Review, extended time, repetition, review, graphic organizer, positive reinforcement, interactive activities, teacher modeling, step by step instructions, prompting, repetition, review, chunking information, rephrasing, writer’s checklists, sentence starters, and graphic organizers, explicit instruction, strategy sheet, frequent teacher check ins, individualized teacher support, prompting, visual and verbal cues, read aloud, individualized support, clarifying questions, capitalization and punctuation checklist, vocabulary support in all academic areas, pre-writing exercises brainstorming, step by step directives, exemplars, multi sensory supports.”^[71] In sum, although I find that DOE may consider formalizing Student’s individual needs vis-à-vis his interfering behaviors with the creation of a BIP, Student’s behaviors are adequately addressed with the behavioral supports recommended in the IEP, which are designed to individually and specifically provide for Student’s needs; the assignment of a paraprofessional was designed to address these issues. The DOE considered the need for a BIP, rejected that need, provided the necessary supports to address Student’s behaviors, and I find that the absence of a BIP did not deprive Student of a FAPE.

• • DOE’s Recommendation of a Paraprofessional was Appropriate In the DPC, Parent alleged that the 12:1+1 (12 students, 1 teacher, and 1 paraprofessional) DOE school was inappropriate because Student’s needs require a 12:2 (12 students and 2 teachers) ratio, which is what was being provided at the Private School. This claim was based entirely on Parent’s belief that a “second teacher [] can see that [Student] is visibly upset and can troubleshoot that before it happens,”^[72] and that “two teachers [who] can, you know, kind of solve the problem when they see it starting to arise because they are able to teach in that moment.”^[73] Parent’s conviction on the matter is that:

“it is really a question about like education and preparation, right. So a teacher in special [] needs is an educated person. They have to have a degree in that, right. A para is not a teacher. A para could be, you know, somebody that just graduated high school and now they are a para, and they go through a background check and that’s it. They are not educated into how do you actually teach [sic] children with special needs. How do you actually, you know, help them understand, you know, and learn at the moment. A para, it could be just a high school person. So to me, that is why it is key to have two licensed educated degree holders teachers, special needs education teachers.”^[74]

As outlined in the discussion on Student’s BIP, supra, the CSE considered Student’s behavioral needs, and outlined the way those needs would be addressed. Parent’s testimony indicates the preference he has with respect to his child, but the use of a paraprofessional would address Parent’s description of Student’s needs to “immediately go to [Student] and help him troubleshoot in the moment preventing that [behavior] from escalating to a big reaction.”^[75] CSE Special Education teacher described the process of selecting the most appropriate school setting for Student, to include a smaller class size and concluded that “[w]e stopped at 12 [students in the class]… we always consider…what is the most restrictive environment, where is the, where is the least restrictive environment, and if can, we think that eight. Once we make a decision for eight then we're looking at a full, a full district 75[]. So yeah, we, we, we did consider, but we didn't decide on that.”^[76] I find CSE Special Education Teacher’s testimony credible.

Although Parent preferred to have a second teacher in Student’s classroom, I disagree that a special education teacher would be necessary to address Student’s needs and behaviors. Parent’s testimony that Student required redirection does not necessitate a second special education teacher. As previously indicated, an appropriate public education is "not one that provides everything that might be thought desirable by loving parents,"^[77] and I find that the staffing ratios the DOE indicated in Student’s IEP were appropriate, and requiring a second teacher in the classroom would not be necessary to offer Student a FAPE.

• • The DOE Complied with the Requirements for Reevaluations Parent alleges in the DPC that “the CSE failed to evaluate [Student] in all areas of suspected disability,”^[78] and that the last Psychoeducational Evaluation [was] from April 2019…[and that] the CSE failed to conduct updated assessment of “speech/language, sensory motor, and self-regulation needs.”^[79] Pursuant to 8 NYCRR 200.4(b)(4):

“A committee on special education shall arrange for an appropriate reevaluation of each student with a disability if the school district determines that the educational or related services needs, including improved academic achievement and functional performance of the student, warrant a reevaluation or if the student's parent or teacher requests a reevaluation, but not more frequently than once a year unless the parent and representative of the school district appointed to the committee on special education agree otherwise; and at least once every three years, except where the school district and the parent agree in writing that such reevaluation is unnecessary.” (Emphasis added).

Here, there is no allegation that the District failed to evaluate Student’s educational or related services needs, but rather that a re-evaluation was not conducted. “A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.”^[80] There are no indications in the IEP that reevaluations were needed, and Student was making progress in all of his educational domains. Although the DOE has the burden to assess whether additional evaluations were needed, the IEP used sufficient evaluative data to rely on the development of Student’s program. Specifically, the IEP referenced the April 23, 2019, Psychoeducational Evaluation, which included data from the WISC-V and WIAT-III tests.^[81] Private School reports indicated Student “is great with the computer… [and] [t]here are no concerns with gross motor skills[;] [h]e is working on self regulation [sic] skills in occupational therapy.”^[82] The reports further acknowledged that Student requires “counseling services, occupational therapy, and speech and language therapy in order to progress and to meet the goals laid out in this Individual Education Plan.”^[83]

During the CSE meeting, no one, including Parent, voiced any disagreement with respect to the services that Student was already receiving other than the implementation of a BIP and objection to having a placement with a 12:1+1 as opposed to 12:2. Based on the IEP, the CSE had all of the information it required to make placement and related services recommendations consistent with 8 NYCRR 200.4(b)(4) requirements to conduct reevaluation if there were information to “warrant a reevaluation or if the student's parent or teacher requests a reevaluation” (emphasis added). Parent testified that he did not request the CSE to conduct either a speech and language evaluation, a sensory evaluation, or to conduct a classroom observation,^[84] and there is no evidence that reevaluations were warranted, or that Parent or Private School requested them.

Relatedly, despite not asking for a classroom observation, Parent believed that the CSE should have conducted one “[t]o understand what [Parent] was telling them when [he] said that [Student] needs two teachers.”^[85] Although the DOE bears the burden with respect to the development of the IEP, the CSE considered the information they had in front of them, to include information from Parent and the Private School, and did not find a basis to warrant reevaluations.

I find that the CSE did not have a reason to conduct a reevaluation, and absent Parent’s or Private School’s request or voicing concern, the CSE was not required to. Therefore, the DOE did not deprive the Student of a FAPE for failure to evaluate Student.

• • CSE Process
• • The IEP Recommendations Did Not Deprive Student with a FAPE Despite Parental Disagreement A CSE’s consideration of possible recommendations for a student prior to the meeting is permitted so long as the CSE is open to the notion that changes may occur during the CSE meeting.^[86] The key factor in the CSE’s decision-making relates to whether the District has "an open mind as to the content of [the student's] IEP."^[87] DOE may "prepare reports and come with pre[-]formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions,"^[88] and the "active and meaningful"^[89] “parent participation undermines a claim of predetermination.”^[90] Parent’s participation means to be allowed "to participate in meetings with respect to the identification, evaluation, and educational placement of the child."^[91] To find that DOE complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of Student’s IEP.^[92] Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process,"^[93] and this right does not give parents a veto power of IEP recommendation with which parents disagrees.^[94]

Parent assumed that “the CSE did not take [his] recommendations in consideration”^[95] because those recommendations were not implemented. Parent’s opportunity to participate, however, does not mean that parental disagreement with the CSE’s IEP and/or placement recommendations can be the basis for a claim of a denial of FAPE on its own.^[96] "[A]s long as the parents are listened to, Parent’s right to participate is not infringed, even if the [district] ultimately decides not to follow the parents' suggestions."^[97]

Although the evidence in the record shows that Parent disagreed with the DOE’s proposed IEP and placement recommendation, this disagreement does not amount to a denial of the Parent's meaningful participation in the development of the program.^[98]  Consistent with the standard set forth in Rowley, I find that the IEP was designed to provide Student with “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,” for more than merely “trivial advancement.”^[99] I find that the CSE considered Parent’s and Private School’s input in the creation of the IEP, and that no denial of FAPE occurred because “[a] professional disagreement is not an IDEA violation,"^[100] and "[m]eaningful participation does not require deferral to parent choice."^[101]

• • IEP Implementation & Class Profile Was Speculative The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement."^[102] Contrary to Parent’s Attorney’s assertion in her closing brief’s representation that Parent “testified that the proposed class could not provide [Student] with appropriate peers or peer models, as students were more impaired than [Student] and with emotional disturbances and intellectual disabilities,”^[103] Parent’s actual testimony was that “[s]tudents in that school were classified as emotionally disturbed, autistic, and intellectual disabilities, and [he] had concerns that the students were more impaired than [Student].”^[104] This is not a trivial difference because Parent based his rejection of the Public-School placement on the school profile of students, and not the class profile.

In addition, although DOE is required to implement a student's IEP in accordance with the grouping requirements of State regulation, the Second Circuit made it clear that the IDEA does "not expressly require school districts to provide parents with class profiles," ^[105] and that DOE need not provide "details about the specific group of children with which their child will be placed."^[106] Finally, although the "IDEA affords the parents no right to participate in the selection of... their child's classmates,"^[107] additional information of DOE’s inability to appropriately group Student in conformity with State regulations could have been the basis for an appropriate challenge to the placement. Had Parent asked the DOE for the profile of students who would be taught alongside Student in class, Parent could potentially claim that the class grouping was inappropriate. Here, this was not the case.

The Second Circuit further held that Student’s assigned public school placement may not be speculative when the consist of "prospective challenges to [the assigned public school's] capacity to provide the services mandated by the IEP;"^[108]  such challenges must be "tethered" to the individual needs outlined in the IEP,^[109] allege that the school is "factually incapable" of implementing the IEP,^[110]  and must be based on something more than the parent's speculative "personal belief" that the assigned public school site was not appropriate.^[111] I find that the DOE was not factually incapable of implementing the IEP.

As an aside, Parent is correct that the placement recommendations in the IEP are contradictory. DOE recommended a DOE specialized school,^[112] but rejected this option two pages later.^[113] The same inconsistency exists in the DOE’s Prior Written Notice for the school placement, which also includes the 12:1+1 class ratio.^[114] Although I find this error an important one, it does not result in the denial of a FAPE as there was no disagreement between the Parties as to the proposed school, the class ratio, and the actual school placement.

Consistent with the evidence presented and the Parent’s testimony, I find that the choice to unilaterally place Student in Private School amounted to speculation that the IEP could not be implemented because of the profile of students who attend the school.

• • Section 504 Claims Parents asserted a claim under Section 504 of the Rehabilitation Act for all of the School Year in question.^[115] Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[116] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[117] An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[118] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[119] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[120] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[121]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[122] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504.^[123]

I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.

IV. Conclusion

Based on the foregoing, I find that the DOE provided Student with a FAPE for the 2021-2022 school year, and the appropriateness of the unilateral placement and the equities involved need not be considered under the Burlington-Carter analysis. Therefore, Parent’s request for tuition reimbursement is denied.

DATED: SO ORDERED

9/12/2022

Dr. Oren Varnai, Esq., IHO

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

Parent Exhibit	Date	Title	No. of Pages
P – A	03/31/22	Impartial Hearing Request	8
P - B	06/14/21	Ten Day Notice and Email Confirmation	3
P - C	08/30/21	Amended Ten Day Notice and Email Confirmation	4
P - D	06/19/21	Prior Written Notice	4
P - E	April 2019	PALS Psychoeducational Evaluation	12
P - F	2021-2022	Private School Program Description	8
P - G	2021-2022	Private School Class Schedule	1
P - H	Feb. 2022	Private School Midyear Report - Middle School 2021-2022	13
P - I	5/2022	Private School Spring Report - Middle School 2021-2022	15
P - J	Various Dates	Private School Tuition Affidavit and Attendance Record	2
P - K	3/2021	Private School Tuition Contract	4
P - L	Various Dates	Proof of Payment	8
DOE Exhibit	Date	Title	No. of Pages
DOE-1	04/29/2021	IEP	50
DOE-2	04/29/2021	IEP Meeting Minutes	7
DOE-3	05/17/2021	Parent Waiver of IEP Meeting to Amend IEP	1
DOE-4	04/2019	Psychoeducational Evaluation	12
DOE-5	02/2021	Private School Midyear Report	13
DOE-6	02/2021	Private School Middle School 2020-2021 Grades	1
IHO Exhibit	Date	Title	No. of Pages
IHO-1	8/29/2022	Parent’s Closing Brief	22
IHO-2	Various	Emails re: closing briefs	6
IHO-3	9/8/2022	DOE email re: closing brief	4
IHO-4	Various	Parent email re: witness unavailability	12

Footnotes

[1] Ex. IHO-1.

[2] Ex. P-A-2.

[3] Ex. IHO-4.

[4] Tr. II, p. 43.

[5] Ex. IHO-2. This exhibit includes all correspondences between the Parties with respect to the submission of closing briefs.

[6] Ex. IHO-3.

[7] The transcription service did not paginate the second day of the hearing in sequence. Therefore, references to the transcript will be “Tr. I” for the August 1, 2022, hearing, and “Tr. II” the August 17, 2022, hearing.

[8] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].

[9] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.

[10] 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. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[11] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].

[12] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].

[13] R.E., 694 F.3d at 190-91.

[14] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].

[15] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

[16] U.S.C. § 1415[f][3][E][i].

[17] Rowley, 458 U.S. at 203.

[18] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.

[19] Endrew F., 137 S. Ct. at 1001.

[20] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.

[21] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.

[22] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].

[23] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.

[24] 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]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.

[25] CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].

[26] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].

[27] CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].

[28] Endrew F., 137 S. Ct. at 1000.

[29] Ex. P-A-3.

[30] Ex. DOE-1-50.

[31] Ex. DOE-2-1.

[32] Tr. I, p.34.

[33] Id.

[34] Tr. II, p. 9,11.

[35] Ex. DOE-5-1.

[36] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.

[37] U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see also E.H. v. Bd. of Educ., 2009 WL 3326627, at *3 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S., 454 F. Supp. 2d at 149-50).

[38] U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 673 [S.D.N.Y. 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009].

[39] NYCRR 200.1[r].

[40] NYCRR 200.22[a][3].

[41] R.E., 694 F.3d at 190.

[42] A.C., 553 F.3d at 172.

[43] Tr. I p. 66.

[44] Id; Ex. DOE-1-19.

[45] Tr. I, p. 67.

[46] Ex. DOE-1-5.

[47] Ex. DOE-1-6.

[48] Ex. DOE-1-13.

[49] Ex. DOE-1-8.

[50] Ex. DOE-1-9.

[51] Tr. I, p. 23.

[52] Tr. I, p.25.

[53] Ex. DOE-1-15.

[54] Ex. DOE-2-3.

[55] Ex. DOE-2-4.

[56] Id.; emphasis added.

[57] Ex. DOE-1-15.

[58] Ex. DOE-1-18.

[59] Ex. P-B-2.

[60] Ex. P-D-1.

[61] Ex. P-C.

[62] P-C-2.

[63] Ex. DOE-1-49.

[64] Id.

[65] Tr. II, p. 11.

[66] Ex. DOE-1-50.

[67] Tr. II, p. 27.

[68] Tr. II, p. 28.

[69] Id.

[70] Tr. II, p.27.

[71] Ex. DOE-1-18.

[72] Tr. II, p.27.

[73] Tr. II, p. 29.

[74] Id.

[75] Tr. II, p. 28.

[76] Tr. I, p. 53

[77] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.

[78] Ex. P-A-2.

[79] Id.

[80] Appeal No. 22-090 referencing 8 NYCRR 200.4[b][3]; (emphasis added).

[81] Ex. DOE-1-2.

[82] Ex. DOE-1-18.

[83] Id.

[84] Tr. II, p. 24-25.

[85] Tr. II, p. 25.

[86] T.P., 554 F.3d at 253; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8-*9 [S.D.N.Y. July 30, 2015]; see 34 CFR 300.501[b][1], [3]; 8 NYCRR 200.5[d][1], [2].

[87] T.P., 554 F.3d at 253; see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *10-*11 [E.D.N.Y. Sept. 2, 2011], aff'd 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012]; R.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 294 [E.D.N.Y. 2009], aff'd, 366 Fed. App'x 239 [2d Cir. Feb. 18, 2010].

[88] DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18 [S.D.N.Y. Jan. 2, 2013] [alternation in the original], quoting M.M. v. New York City Dept. of Educ. Region 9 (Dist. 2), 583 F. Supp. 2d 498, 506; [S.D.N.Y. 2008].

[89] B.K., 12 F. Supp. 3d at 358-59.

[90] State Appeal No. 22-092.

[91] U.S.C. § 1415[b][1].

[92] Cerra, 427 F.3d at 192.

[93] D.D-S., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006].

[94] T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009].

[95] Tr. II, p. 23.

[96] See T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P., 2015 WL 4597545 at *8, *10.

[97] E.F. v. New York City Dep't of Educ., 2013 WL 4495676 at *17 [E.D.N.Y. Aug. 19, 2013].

[98] see E.H. v. Bd. of Educ. of the Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 [2d Cir. 2009]; E.F., 2013 WL 4495676, at *17; DiRocco, 2013 WL 25959, at *18-*20; P.K., 569 F. Supp. 2d at 383; Sch. for Language & Commc'n Dev., 2006 WL 2792754 at *7.

[99] Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982).

[100] P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008].

[101] Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006].

[102] R.E., 694 F.3d at 195; see E.H. v. New York City Dep't of Educ., 611 Fed. App'x 728, 731 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 603 Fed. App'x 36, 40 [2d Cir. Mar. 19, 2015].

[103] Ex. IHO-1-10.

[104] Tr, II, p.17.

[105] Cerra, 427 F.3d at 194.

[106] see N.K.., 37 961 F. Supp. 2d at 590; E.A.M. v New York City Dep't of Educ., 2012 WL 4571794, at *11 [S.D.N.Y. Sept. 29, 2012].

[107] J.L. v. City Sch. Dist. of New York, 2013 WL 625064, at *11 [S.D.N.Y. Feb. 20, 2013].

[108] M.O., 793 F.3d at 245; see Y.F. v. New York City Dep't of Educ., 659 Fed. App'x 3, 6 [2d Cir. Aug. 24, 2016]; J.C. v. New York City Dep't of Educ., 643 Fed. App'x 31, 33 [2d Cir. 2016]; B.P. v. New York City Dep't of Educ., 634 Fed. App'x 845, 847-49 [2d Cir. 2015].

[109] see Y.F., 659 Fed. App'x at 5.

[110] see Z.C. v. New York City Dep't of Educ., 2016 WL 7410783, at *9 [S.D.N.Y. Nov. 28, 2016]; L.B. v. New York City Dept. of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016].

[111] K.F., 2016 WL 3981370, at *13; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016].

[112] Ex. DOE-1-47.

[113] Ex. DOE-1-49.

[114] Ex. P-D-1, 2.

[115] Ex. P-A-2, para 1.

[116] C.F.R. § 104.33(a).

[117] C.F.R. § 104.33(b).

[118] C.F.R. §104.3(j)(1).

[119] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[120] See 28 C.F.R. § 35.108(c)(1)(ii).

[121] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[122] C.F.R. § 104.36.

[123] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.