Impartial Hearing Decision

FINDINGS OF FACT & DECISION

IHRS Case Number: 571788

Student Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: September 27, 2002

District: [REDACTED] UFSD

Hearing Requested By: Parent

Dates of Hearings: August 8, 2022

August 12, 2022

October 14, 2022

Actual Record Close Date: November 15, 2022

Hearing Officer: Jeffrey J. Schiro, Esq.

Date of Decision: November 23, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2022

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED, ESQ., Attorney

[REDACTED], Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 12, 2022

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2022

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Educational Consultant

[REDACTED], Special Education Teacher

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Director of Pupil Personnel Services

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent of the student in a due process complaint received by the [REDACTED] Union Free School District (the “District”) on April 8, 2022. The issues to be determined at this hearing are: (1) whether the District appropriately administered the New York State Alternate Assessment (“NYSAA”) to the student; (2) whether the District’s Committee on Special Education (the “CSE”) appropriately incorporated the results of the 2020/21 NYSAA into the student’s individualized education program (“IEP”); and (3) whether the parents were afforded the opportunity to meaningfully participate in an April 7, 2022 CSE meeting (Ex. P-A).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.

§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR

§ 200.5(k).

II. PROCEDURAL HISTORY

On April 11, 2022, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). My appointment was done off the rotational list established by the New York State Education Department (“NYSED”) given my appointment to other (then) on-going matters involving the same student with a disability (R. 4). See 8 NYCRR § 200.5(j)(3)(ii)(a)(1). On April 25, 2022, the District served the parents with a combined answer and motion to dismiss the complaint (Exs. SD-1, SD-4). See 8 NYCRR §§ 200.5(i)(4)-(5).

On June 22, 2022, a pre-hearing conference was held with the parties. See 8 NYCRR § 200.5(j)(3)(xi). At the pre-hearing conference, the parties consented to my continued appointment in this matter (R. 4-7). The District’s motion to dismiss the complaint as insufficient, see 8 NYCRR § 200.5(i)(6), was denied (R. 15; Ex. SD-4 at 9-10). The District’s motion to dismiss the complaint on other grounds was reserved until completion of the hearing on the merits (R. 17; Ex. SD-4).

Hearings on the merits of this matter were thereafter held on: August 8, 2022; August 12, 2022; and October 14, 2022 (R. 38, 312; Oct Tr. 1; Exs. IHO-I, IHO-V).^[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the April 8, 2022 due process complaint, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. P-A, SD-4).^[3] See 8 NYCRR § 200.1(zz)(7).

The student resides within the [REDACTED] School District (“[REDACTED]”). [REDACTED] is an elementary school district which ends as grade six. When children finish sixth grade at [REDACTED], they have a choice between attending middle school and high school in the [REDACTED] School District or the [REDACTED] School District. For all times relevant to this hearing, parents have elected for the student to receive instruction from the [REDACTED] School District. See Appeal No. 22-010 at 10 n. 13.

The student in this case has been the subject of fourteen prior State-level administrative appeals.^[4] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.

In May 2021, the student was administered the NYSAA (Ex. P-D). The NYSAA is a completer-delivered adaptive assessment that measures student achievement of the ELA, mathematics, and science standards at a reduced level of depth, breadth, and complexity. This computerized assessed allows for greater student accessibility and provides useful information to help inform instruction (Ex. SD-1 at ¶ 41). The NYSAA is administered to students through the Dynamic Learning Map (“DLM”) Educator Portal (R. 412).

The CSE conducted an annual review of the student’s special education program over two days, i.e., June 9, 2021 and June 17, 2021 (Ex. SD-1(b)). The June 2021 CSE ultimately recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] School District for the twelve-month 2021/22 school year. The CSE also recommended that the student receive related services of: specialized transportation (i.e., adult bus attendant); individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech and language therapy, three (3) times per week for thirty (30) minutes per session; small group (5:1) speech and language therapy, one time per week for thirty (30) minutes per session; individual transition instruction in the home and community, four (4) times per week for ninety (90) minutes per session; and individual parent counseling and training, two (2) times per month. The CSE further recommended that the student receive a 1:1 aide to physically navigate his school building safely (Ex. SD-1(b) at 15-18, 22). The parent rejected the CSE’s recommended program for the student and opted for the student to continue receiving instruction in his pendency placement (Ex. SD-5 at 8). ^[5]

In December 2021, the parent began emailing representatives of the New York State Education Department requesting the results of the student’s May 2021 administration of the NYSAA (Ex. P-D). Through those efforts, the parent came to learn that the results of the student’s May 2021 administration of the NYSAA were first available sometime between the end of July 2021 and the beginning of August 2021 in the DLM Educator Portal (R. 143, 502-504). The District was unaware of that posting, however, based on a past practice in which the data reporting system would send score reports for all of the State testing directly to school districts and parents (R. 142). The District received the student’s NYSAA results sometime between the end of January 2022 and February 2022 (R. 117). On February 17, 2022, the District’s Director of Pupil Personnel Services uploaded the student’s NYSAA results into the IEP Frontline Management System, which is a confidential digital document repository for records such as IEPs, testing reports, progress reports and any standardized testing (R. 360, 405, 410-411). After uploading the NYSAA results into the document repository on February 17, 2022, the District’s Director of Pupil Personnel Services informed the CSE members that the NYSAA results were in the repository for their review (R. 424).

The District scheduled a team meeting in March 2022 to review the student’s NYSAA results, but the parent requested that the student’s NYSAA results be reviewed at a CSE meeting (R. 277). Thereafter, the CSE met on April 7, 2022 to review the student’s NYSAA results and the student’s then-present levels of performance (“PLEPs”) as reported in his IEP (Exs. P-A at ¶ 10, SD-1(a) at 2). The parent objects to the conduct of the CSE at the April 7, 2022 meeting and this hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The District The parent’s complaint should be dismissed. The District appropriately administered the NYSAA to the student in May 2021. The CSE appropriately incorporated the results of the 2020/21 NYSAA into the student’s IEP. The parent was afforded the opportunity to meaningfully participate in an April 7, 2022 CSE meeting which reviewed the student’s NYSAA results and the student’s PLEPs as reported in his IEP (R. 66-73; Exs. SD-4, SD-5).

B. The Parent The District denied the student a FAPE. The District failed to appropriately discern the student’s PLEPs which caused it to develop inappropriate goals for the student for the 2021/22 school year. The District failed to appropriately modify instruction so as to allow the student to access the general education curriculum. The parents were deprived of the ability to participate as meaningful participants within the April 7, 2022 CSE. As a direct result of the District’s actions and omissions, the student has suffered significant educational deprivation warranting an award of compensatory education (R. 73-85; Exs. P-A, P-G).^[6]

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).^[7]

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. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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).

"'[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.'" Walczak v. Florida 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). The Supreme Court has indicated 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." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, 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); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471

F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

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. See 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." See Rowley, 458 U.S. at 203. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).^[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. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Administration of May 2021 NYSAA The parent asserts that the District failed to properly administer the NYSAA to the student (Ex. P-A at ¶¶ 15, 16, 20). From my review of the evidence contained in the hearing record, I find that the District properly administered the NYSAA to the student in May 2021.

The District’s Director of Pupil Personnel Services offered credible testimony that District personnel followed the guidelines set forth in the DLM Manual when administering the NYSAA to the student in May 2021 (R. 373, 375; Ex. P-B). The student’s special education teacher during the 2020/21 school year received training from Eastern Suffolk BOCES at the District Office on the proper administration of the NYSAA and she received a certification upon her successful completion of that training (R. 428-429, 459; Ex. SD-3). Lastly, the District administered the NYSAA to the student during the mandatory three-month window established by the New York State Education Department for that testing (Exs. SD-1 at ¶¶ 59-60, SD-1(f))

C. April 2022 IEP Revisions The parent asserts that the District did not use the NYSAA results, or “any other form of appropriate assessment methodology utilizing measurable criteria,” to develop the student’s PLEPs on his IEP (Ex. P-A at ¶¶ 15, 22). From my review of the evidence contained in the hearing record, I find that the CSE used the NYSAA results and other relevant reports to revise the student’s PLEPs on his IEP.

It is undisputed that the CSE convened on April 7, 2022, at the parent’s request, to review the NYSAA results and the student’s PLEPs as reported on his IEP (Exs. P-A at ¶ 10, SD-1(a)). The District’s Director of Pupil Personnel Services offered credible testimony that on April 2022, the CSE reviewed “the information from the alternate assessment results as well as the teacher’s progress report, the educational consultant report and the speech therapist’s report” (R. 105, 127). The NYSAA test results showed that the student “was at target in math, ELA and approaching target in science (Ex. SD-1(e) at 40).^[9] After reviewing those reports, the CSE “amended the IEP to add that new information” (R. 106), including putting “specific information into the present levels regarding the alternate assessment results” (R. 172).

At the April 2022 CSE meeting, the student’s special education teacher confirmed that the student was demonstrating the skills identified in the NYSAA learning profile and reported that she would use the NYSAA results to determine the student’s goals going forward (Exs. SD-1 at ¶ 62, SD-1(e) at 10). At the hearing, the student’s special education teacher confirmed that the April 7, 2022 IEP contained new information from her report that had to do with her consideration of the alternate assessment results and her observations of the student’s performance (Oct. Tr. 98; Exs. SD-1(a), SD-1(e) at 10-20, SD-2).

The prior written notice generated following the April 2022 CSE meeting documents that the April 2022 CSE considered: the NYSAA results and learning profiles, the special education teacher’s March 17, 2022 progress report, and the educational consultant’s report (Exs. SD-1 at ¶¶ 47, 64, SD-1(a), SD-2). Likewise, a comparison of the April 7, 2022 IEP with the June 2021 IEP demonstrates that the April 2022 CSE amended the student’s PLEPs as a result of its review of the NYSAA results and the special education teacher’s March 17, 2022 progress report (Exs. SD-1 at ¶ 52, SD-1(a), SD-1(d)).

Alternatively, while the parent objects to the April 2022 CSE’s failure to modify the student’s curriculum, develop goals, and increase the student’s access to the general education curriculum (Ex. P-A at ¶¶ 27, 28, 31, 32), those tasks were beyond the scope of the April 7, 2022 meeting (Exs. SD-1 at ¶ 16, SD-1(a), SD-1(e) at 8). None of the April 2022 CSE meeting participants proposed any changes to the student’s IEP goals when prompted by the District’s Director of Pupil Personnel Services to do so (Ex. SD-1(e) at 8, 54, 56). Indeed, both the student’s special education teacher and the student’s educational consultant testified that their intent was to use the NYSAA results to develop educational goals for the student for the 2022/23 school year (Oct. Tr. 22-23, 62, 97-98).

D. Parent Participation – April 7, 2022 CSE Meeting In his complaint, the parent alleges that he and his wife were “deprived of the ability to participate as meaningful participants within the CSE” (Ex. P-A at ¶¶ 33-37).

The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child." See 20 U.S.C. § 1415(b)(1). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate. See 34 C.F.R. § 300.322; 8 NYCRR § 200.5(d).

Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation. 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; E.F. v. New York City Dep’t of Educ., 2013 WL 4495676 at *17 (E.D.N.Y. Aug. 19, 2013) (stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"); P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("A professional disagreement is not an IDEA violation"); School for Language & Communication Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006) ("Meaningful participation does not require deferral to parent choice"). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP. See Cerra, 427 F.3d at 192; see also T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 (2d Cir. 2009) (noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree).

At the April 2022 CSE meeting, the District’s Director of Pupil Personnel Services summarized the results of the 2021 NYSAA (Exs. SD-1 at ¶¶ 17-20, SD-1(e) at 9-10). The student’s special education teacher then discussed the meaning of the NYSAA results for the student’s lesson planning and his annual goals (Exs. SD-1 at ¶¶ 21-24, SD-1(e) at 10-20). The student’s educational consultant then discussed her coordination with the student’s special education teacher on goal development (Exs. SD-1 at ¶ 25, SD-1(e) at 24).

When prompted to offer suggestions and comments, the parent questioned the accuracy of the NYSAA results based on: (1) a claim that the student’s former special education teacher was not certified to administer the May 2021 NYSAA to the student; (2) a three week interruption in the student’s instruction prior to the administration of NYSAA to the student in May 2021; (3) the delay in providing the results of the NYSAA to the student’s instructional team; and (4) insufficient dialogue between the general education teacher and the special education teacher on modifying grade level curriculum to meet the student’s unique and individualized needs (Exs. SD-1 at ¶¶ 29-30, SD-1(e) at 32-33, 35). The District’s Director of Pupil Personnel Services responded to those concerns, as well as to the parent’s objections to the June 2021 IEP which are still the subject of ongoing litigation (Exs. SD-1 at ¶¶ 31-34, 38, 41, 43, 69-71, 74, SD-1(e) at 39-40, 42-45, 52-54, 56, 58-59). Based on this record, I find that the CSE allowed the parents to meaningfully participate in the revision of the student’s IEP. See J.P. ex rel. J.P v. City of N.Y. Dep't of Educ., 717 F. App'x 30, 32 (2d Cir. 2017); J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606, 648-649 (S.D.N.Y. 2011).

Alternatively, while the April 2022 CSE meeting ended somewhat abruptly, having accomplished its primary goal of reviewing the student’s NYSAA results, it was within the Director of Pupil Personnel Services’ discretion, as Chairperson of the meeting, to conclude the meeting when further dialogue became unproductive (Exs. SD-1 at ¶ 44-45, SD-1(e) at 62). I have considered the parent’s remaining claims and have concluded that they are without merit.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

The District’s motion to dismiss is GRANTED and the parent’s complaint is

DISMISSED.

Dated: November 23, 2022

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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 HEARING RECORD

PARENT

• • Due Process Complaint (IHRS Case No. 571788), 8/2/22, 6 pgs.
• • DLM Learning Maps (2020/21) for ELA, math & science, 7/1/20, 44 pgs.
• • Email string, 2/14/22
• • Email string b/w parent and SED, 2/11/22
• • [Reserved]
• • IEP Progress Report (2021/22), 6/24/22, 13 pgs.
• • Post-Hearing Brief, undated, 21 pgs.

SCHOOL DISTRICT

• • Affidavit of Director of Pupil Personnel Services, 8/22/22, 23 pgs.
• • Prior Written Notice & Individualized Education Program, 4/7/22, 23 pgs.
• • Individualized Education Program, 6/2021, 22 pgs.
• • Due Process Complaint (IHRS Case No. 552797), 6/28/21, 2 pgs.
• • Findings of Fact & Decision (IHRS Case No. 552797), 29 pgs.
• • Transcript 4/7/22 CSE Meeting, 4/7/22, 76 pgs.
• • SED Memorandum: Birthday Ranges for NYSAA, 10/2020, 1 pg.
• • Annual Progress Report, 3/17/22
• • Certification of [REDACTD]; Administration of NYSAA, 12/3/20, 1 pg.
• • Combined Verified Answer & Motion to Dismiss, 4/25/22, 28 pgs.
• • Prior Written Notice & Individualized Education Program, 4/7/22, 23 pgs.
• • Due Process Complaint (IHRS Case No. 552797), 6/28/21, 2 pgs.
• • Individualized Education Program, 6/2021, 22 pgs.
• • Summons & Complaint, Index No. 603317/2022, N.Y. Sup. Ct., Suffolk Co.
• • Motion to Dismiss, Index No. 603317/2022, N.Y. Sup. Ct., Suffolk Co.
• • SED Memo, Birthday Ranges for NYSAA, 10/2020, 1 pg.
• • Post-Hearing Brief, 11/14/22, 33 pgs.

IMPARTIAL HEARING OFFICER

• • Hearing Notice, 6/23/22, 1 pg.
• • Extension Order, 6/22/22, 1 pg.
• • Signed Subpoenas, 8/10/22, 2 pgs.
• • Extension Order, 8/21/22, 1 pg.
• • Hearing Notice, 8/29/22, 1 pg.
• • Extension Order, 10/20/22, 1 pg.
• • Extension Order, 11/14/22, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.,” except references to the October 14, 2022 transcript (which was not consecutively paginated) are noted as “Oct. Tr.” References to exhibits admitted into evidence are noted as “Ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Oct. Tr. 109-110; Exs. IHO-II, IHO-IV, IHO-VI, IHO-VII).

[3] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[4] See Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.

[5] The parent challenged the June 2021 IEP in a prior due process proceeding (i.e., IHRS Case No. 552797) (Exs. SD-1 at ¶ 7, SD-1(c)). Following an impartial hearing over multiple days, I rendered a Findings of Fact & Decision (“FOFD”), dated January 28, 2022, which determined that the June 2021 IEP offered the student a FAPE (Exs. SD-1 at ¶ 8, SD-1(d) at 26). The parent appealed the January 28, 2022 FOFD to the New York State Education Department’s Office of State Review. On March 11, 2022, the State Review Officer (“SRO”) dismissed the parent’s appeal (Ex. SD-1 at ¶ 9). See Application of a Student with a Disability, Appeal No. 22-010. On April 6, 2022, the parent filed a complaint in federal district court seeking review of the SRO’s March 11, 2022 dismissal, which is currently pending (Ex. SD-1 at ¶ 10). See Killoran v. Westhampton Beach Sch. Dist., 22-cv-1632 (EDNY, Seybert, J.).

[6] While the parent also argues in his post-hearing brief that the “IEP leading into the 2021-2022 academic year,” i.e., the June 2021 IEP, was deficient because it failed to utilize the May 2021 NYSAA results (Ex. P-G at 3-5), I find that that issue is barred from consideration in this proceeding based on the twin principles of res judicata and collateral estoppel, see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19. 2006), as the merits of the June 2021 IEP were thoroughly litigated in a separate proceeding, i.e., IHRS Case No. 552797 (Exs. 1(c), 1(d)).

[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[8] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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." See Endrew F., 137 S. Ct. at 1000.

[9] There are four target categories on the NYSAA: emerging, approaching target, at target, and advanced (Ex. SD-1(e) at 9-10).