New York City Department of Education, Impartial Hearing Decision

NYSED # 573157 / NYC # 226486

FINDINGS OF FACT AND DECISION

Case Number: 226486

Student’s Name:

OSIS #

School District: N.Y.C. Dept. of Education

Home District:

Service District

Impartial Hearing Officer: Olivia Sohmer, Esq.

Date of Filing: 05/17/2022

Hearing Requested by: Parent

Date of Hearing: 07/06/2022; 07/12/2022; 07/26/2022

Record Close Date: 08/15/2022

Date of Decision: 08/15/2022

INTRODUCTION

Student, who is described as presenting difficulties in areas including fine motor skills, hand strength, core muscle strength, and coordination (DOE 3-1), was classified in June 2020 as a Preschool Student With a Disability. At issue in this case is the decision at a March 14, 2022 meeting of the Committee on Special Education to declassify Student as of June 30, 2022, rendering him no longer entitled in the 2022-23 school year to special education and related services under the Individuals with Disabilities Education Act (“IDEA”).

On May 17, 2022 the Parent, without an attorney, filed a request for an impartial hearing (the “Due Process Complaint” or “DPC”), stating simply that the Student’s Occupational Therapy (“OT”) “has been taken away from him when he clearly still needs it as recommended by the school and his OT therapist. Please continue to provide OT services.” For the reasons discussed more fully below, I find that the District improperly declassified this preschool Student and thereby failed to provide Student with a free and appropriate public education (“FAPE”) for the school year 2022-23.

PROCEDURAL HISTORY

The Parent continued unrepresented throughout the proceedings. Following the filing of the DPC, I was appointed on May 23, 2022 as Impartial Hearing Officer (“IHO”) to preside over the merits of this matter. It is not known whether a meeting occurred between the District and the Parent during the Resolution Period.^[1] After the Resolution Period ended on June 16, 2022, a Pre-Hearing Conference (“PHC”) was scheduled for June 21, 2022, but the Parent did not appear. The PHC was rescheduled and held on June 27, 2022, during which it was agreed that disclosures were due on June 28, 2022 and the Due Process Hearing (“DPH”) would be held on July 6, 2022. The District did not produce its disclosure to the Parent until the evening of July 5, but the Parent waived any objection and chose to proceed with the DPH on July 6, 2022 (Tr: 38-39). The DPH was conducted on July 6, 12, and 26, 2022. At the parties’ request, the compliance date was extended from July 16, 2022^[2] to August 15, 2022 to permit completion of the hearing.

JURISDICTION

A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200. Executive Order 91 (December 27, 2021) and Executive Order 20 (June 24, 2022) confer jurisdiction over this matter upon State Certified Impartial Hearing Officers who are members of the Special Education Hearings Division of the Office of Administrative Trials and Hearings.

LEGAL FRAMEWORK

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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. 20 U.S.C. § 1400(d)(1)(A)-(B).

“Under the educational scheme of the IDEA … parents of students with disabling conditions are guaranteed ‘both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate’” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008), quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S. Ct. 592, 598 (1988)

Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA, is an issue that has been left for each state to resolve (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 66 [2d Cir. 2000]). Cases addressing this issue in New York appear to have followed a case-by-case approach (Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that each child is different and the effect of each child’s particular impairment on his or her educational performance is different]; Muller v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998] [upon de novo review of record, rejecting IHO and SRO rulings and finding that student qualified as having a serious emotional disturbance, not a mere conduct disorder]; N.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 543 [S.D.N.Y. 2007], aff’d 2008 WL 4874535 [2d Cir. Nov. 12, 2008] [finding that student did not suffer from an “inability to learn” ]; see also roundup of New York decisions in Application of Bd Of Educ of Buffalo City Sch. Dist., Appeal No. 13-056 at 13).

The IDEA and State law make clear that “[w]here a school district has previously classified a student as one ‘with a disability,’ it must evaluate a student prior to declassifying” the student, and “[c]onsistent with federal and state regulations, the CSE, consisting of a group of qualified professionals and the child’s parent(s), must review existing evaluation data on the child, including information provided by the parents, and current classroom-based assessments and observations from teachers and other related service providers” (J.R. and D.M.R. ex rel. J.R. v Board of Educ. for the Iroquois Cent. Sch. Dist., 2020 WL 10817806, at *12, 2020 U.S. Dist. LEXIS 221608 *, No. 18-CV-859(JLS), 120 LRP 36764 [W.D.N.Y. November 24, 2020], citing 20 U.S.C. § 1414[c][1][A]; 8 NYCRR §§ 200.4[b][5][i], 200.4[b][5][ii], 200.4[b][4], 200.4[c][3]) (emphasis supplied); see also 20 U.S.C. § 1414[c][5][A]). In conducting the evaluation, the school district must also (i) ensure the evaluation is comprehensive; (ii) consider a student’s initial or most recent evaluations; (iii) “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information”; and (iv) assess the child in “all areas of suspected disability” (20 U.S.C. §§ 1414[b][2][A], [b][3][B]; see also 34 C.F.R. §§ 300.4, 300.305, 300.324; 8 NYCRR §§ 200.4[b], [f][1]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR § 200.4[b][6][ix]; see Application of the Bd of Educ of Buffalo Sch. Dist, Appeal No. 13-056 at 12-13; Application of the Dep’t of Educ., Appeal No. 07-018). Once a school district determines a student no longer requires special education services, it is required to identify and recommend up to one year of appropriate declassification support services for the student. 8 NYCRR § 200.4[d][1][iii]. The purpose of declassification support services is “to aid in [the] student’s transition from special education to full-time regular education” 8 NYCRR § 200.1[ooo]. Furthermore, the school district is required to notify the child’s parents of a declassification determination and the reasons underlying it, and also must inform the parents of their right to request an assessment. See 20 U.S.C. § 1414(c)(4)(A); 8 NYCRR §§ 200.4[b][5][iv]; 200.5[a][5][i].

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student with a disability received a FAPE. 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.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). Under the IDEA, if a procedural violation is 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 (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]; A.H. v. Dep’t of Educ., 394 Fed. Appx. 718 [2d Cir. 2010]; E.H. v. Bd. of Educ., 361 Fed. Appx. 156 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff’d, 293 Fed. Appx. 20 [2d Cir. 2008]).

FINDINGS OF FACT

Student has exhibited low muscle tone since he was a baby and did not sit up until he was 18 months old (Tr: 51). Although there was no formal diagnosis by Student’s pediatrician (Tr: 68), Student received Early Intervention physical therapy (“PT”) starting at the age of 10 months from a provider who came to Student’s home (Tr: 47, 61). The PT visits stopped during the Coronavirus pandemic, and were formally discontinued following an evaluation that the Parent described as conducted virtually over “a blurry Zoom with hardly any Wi-Fi” (Tr: 52).

On June 19, 2020, shortly before Student turned three years old, the Committee on Preschool Education (CPSE) held a meeting via telephone. The CPSE noted that Student “presents with low resting muscle tone as well as mild deficits in muscle strength and endurance” (DOE 6-4), but concluded, based on the virtual PT evaluation, that Student was “functioning with less than a 25% delay in his gross motor and functional skill acquisition” (DOE 6-4).

At the same time, however, based on clinical observation via telehealth, it was noted that Student “demonstrates significant delays in fine motor and graphomotor areas, and moderate difficulty with sensory processing areas,” and that Student was “performing significantly below age level in the fine motor and visual motor areas,” with “immature grasp patterns” and “weak” in-hand manipulation skills (DOE 6-3, 6-4).

The CPSE classified Student as a Preschool Student With a Disability and created an IEP recommending the Related Services of two 30-minute sessions per week of 1:1 Occupational Therapy during the 10-month school year at a named Early Childhood Program, selected by the Parent (DOE Ex 5-1 & 6). During the 2020-21 and 2021-22 school years, these services were provided by a DOE-authorized Related Service Provider at the private pre-school program Student was attending (Tr: 61).

On March 14, 2022, in advance of Student turning 5 years old, the Committee on Special Education (“CSE”) held a virtual IEP meeting at which everyone appeared by audio only (Tr: 61). Present at the meeting were the Parent; a Special Education Teacher from the District; a CSE School Psychologist who also served as District Representative to the CSE; and Student’s Classroom Teacher from the private preschool.

The OT provider who worked directly with Student was not at the IEP meeting, and there was no formal evaluation conducted (Tr: 54-55). The CSE had before them only the OT Provider’s Progress Report, dated March 6, 2022 (DOE 3, “the OT Progress Report”).

The OT Progress Report set forth Student’s Present Level of Performance (“PLOP”) as of March 6, 2022. It stated, among other things, that Student “presents difficulties in areas including fine motor skill, hand strength, core muscle strength, and coordination” and “has difficulty maintaining a tripod grasp on writing utensils” (DOE 3-1). Student displayed “poor scissor control” and “decreased hand strength when performing fine motor activities” (DOE 3-1). Furthermore, the OT Report stated that “[Student] presents with low muscle tone throughout his body, as well as poor core muscle and upper body strength. [Student] also presents with poor coordination and balance” (DOE 3-1).

The section of the OT Progress Report entitled “Current Annual Goals” said only, “see previous report” (DOE 3-1). There is no attachment to the Progress Report and no clear evidence what report is referenced. The District acknowledged that the most recent prior evaluation of the Student was the Preschool IEP from June 2020 (Tr: 56).^[3]

The goals in the Preschool IEP – a document not proven to have been considered by the March 2022 CSE – had included that in six months (that is, by December 2020) Student would present with enhanced fine motor skills including ability to “accurately copy a cross design utilizing a tripod grasp 80% of the time” (DOE 6-6). Reporting on Student’s Progress in meeting prior goals, the March 2022 OT Progress Report stated that Student displayed “enhanced fine motor skills since his previous assessment” two years earlier and “can now don scissors independently to cut a straight line, circle, square and triangle,” and also that he “has improved his endurance and strength while engaged in activities” (DOE 3-1).

The recommendation of the OT Progress Report was that Student “should continue to participate in OT services 2 times per week for 30 minutes in individual sessions to help further develop and improve his skills to function in the classroom setting” (DOE 3-1 – 3-2).

The OT Progress Report went on to lay out new goals to be reached “within one year” with quarterly informal assessments. The goals called for Student at the end of the first stage to be able to accurately copy certain shapes “while using a tripod grasp 80% of the time;” at the second stage to cut “complex shapes with a firm grasp on [the] scissors, 80% of the time;” and at the third stage to “accurately and legibly form the letters of his name while utilizing a tripod grasp, 80% of the time” (DOE 3-2).

The CSE meeting on March 14, 2022 was held remotely (Tr: 61). There were four participants in the meeting: a DOE Special Education Teacher/Related Service Provider; a District Representative, who is listed a second time on the attendance page with the title CSE School Psychologist; the Parent; and the Classroom Teacher from the Private Preschool (DOE 2-2).^[4] The two DOE members told Parent that the OT services would be discontinued (Tr: 63-64).

The Classroom Teacher was not available to testify at the Hearing. However, I credit the Parent’s testimony that the Classroom Teacher was “very shocked” that the CSE was taking away Student’s OT, and “was trying to get, to convince them not to take it away” (Tr: 62).

I further credit the Parent’s testimony that she and the Classroom Teacher were “arguing and arguing” for the continuation of services (Tr: 62). At the Hearing, the Parent described that when Student is “coloring or he’s writing something … he just stops in the middle and he won’t finish because – because he’s – he’s tired” (Tr: 58). The Parent testified that she argued at the CSE meeting that Student “has low muscle tone and it, he gets tired very quickly and he could hardly do things for a long period of time” (Tr: 62). The Parent was told by the Classroom Teacher that in gym time, Student is “just always sitting on the side … because he’s tired” (Tr: 58). I credit the Parent’s testimony that this information was conveyed at the CSE meeting (Tr: 62).

The DOE Special Education Teacher/Related Service Provider and the CSE School Psychologist/District Representative “weren’t hearing” the repeated objections and arguments of the Parent and Classroom Teacher, and “just kept saying there’s nothing we can do,” “it’s only one delay, he doesn’t have a delay, it’s not big enough” (Tr: 52, 62, 63-64, 69).

Finally, the DOE Special Education Teacher/Related Service Provider and the CSE School Psychologist/District Representative told the Parent that the services could continue until late December “because they saw that I wanted it more” (Tr: 54). As the Parent had said at the PHC, they “said they were being nice to me (Tr: 21). “There was no calculation” to explain the new cut-off date; the DOE CSE members just “made it up” (Tr: 54).

Following the meeting, on March 15, 2022, the District sent the Parent a Prior Written Notice of Declassification and Support Services (“PWN” DOE Ex 1), stating that “The Committee on Special Education [‘CSE’] proposes to declassify your child and cease providing special education services effective 06/30/2022” (DOE 1-1). The PWN stated that, based on the Occupational Therapy Progress Report dated 03/06/2022 (DOE 3), it had concluded that “your child no longer meets the eligibility criteria for an educational disability.” The PWN and accompanying Recommendations Upon Declassification went on to recommend “declassification support services” of two 30-minute sessions of OT per week, to be provided from September 5, 2022 until December 23, 2022 (DOE 1-2; 2-1).^[5]

The PWN stated that Parent had “the right to address the Committee, either in person or in writing, on the appropriateness of the Committee’s recommendations” and provided a phone number to contact DOE Special Education Teacher/Related Service Provider who had been at the meeting (DOE 1-2). After the meeting, the Parent did not seek to further discuss her objections with the CSE. As Parent credibly testified, “they told me there was nothing I could do, so what was the point of calling them again and discussing it?” (Tr: 68). The PWN also stated that “if you do not agree with this recommendation, you have the right to request mediation or an impartial hearing” (DOE 1-2). As the Parent testified, filing a request for hearing “was the next option that the school gave me” (Tr: 68), and was the course of action she took (DOE 4).

The District’s Witness

Initially, the District planned to rely only on the documents it offered in evidence and did not plan to call any witnesses (Tr: 45). Before the Parent rested, the District requested permission to reopen its case to present a witness to explain DOE policy and procedures for Declassification (Tr: 90, 93). The District IHR was instructed to confine his questions to that limited purpose and not to have the witness opine about the decision in this case, in which the witness was not involved. The Parent was told that she would have the opportunity to question this witness about how the DOE goes about deciding to declassify as student, and what a CSE ought to do before they make that decision, as well as about the basis of any opinion she expressed (Tr: 85, 90, 124). The Parent consented to hear from the witness (Tr: 90, 92), and the District’s request was granted. Ultimately, the Parent chose not to cross examine the Witness (Tr: 132, 136).

The District’s witness is a CSE Site Supervisor (the “Site Supervisor”). The Site Supervisor has a bachelor’s degree in Early Childhood Education, a master’s degree in Childhood Special Education, and a Post-Master’s in School Administration. She is State certified in Elementary General Education, Childhood Elementary Special Education, and as a School Building Leader and School District Leader (Tr: 126-127). The Site Supervisor has held her current position for one year. Before that, the Site Supervisor worked for the DOE as a special education teacher for five years and then as a CPSE administrator for about five years. As CPSE administrator, the witness had a caseload of about 300 students who had been referred to the CPSE. She reviewed evaluations and made recommendations for services based on those evaluations together with parent concerns and teacher input. She would follow up with those services at least once a year or more often if necessary and would hold annual review meetings (Tr: 96). As CSE Site Supervisor, the witness oversees the CPSE administrators and the CSE staff of psychologists, social workers, and teachers who deal with school-aged children (Tr: 96). The Site Supervisor was deemed qualified as an expert in the area of Developing IEPs in NYC (Tr: 128).

The Site Supervisor was familiar with the DOE staff who were there and identified the DOE Special Education Teacher/Related Service Provider as a Speech Therapist, and the CSE School Psychologist/District Representative as a member of the team that conducts evaluations (Tr: 96-97).

The Site Supervisor testified that when a child is declassified, “we can also offer support services just to ensure that the student’s basically, as the safety net to make sure the student has any, you know, supports that they need once the service is removed” (Tr: 99). The Recommendations Upon Declassification in this case (DOE 2-1) show that the Student is to receive continued services from the beginning of the 2022-2023 school year until the date the DOE will close for the holiday break in December (Tr: 100).

The Site Supervisor testified that every case is looked at on an individual basis, and OT could be offered to a student in Kindergarten as a standalone service (Tr: 106-107). OT is typically recommended to address students’ needs in fine motor skills as well as sensory processing and any visual concerns (Tr: 128). Developmental delays in gross or fine motor skills do not always rise to the level of a disability, but could be considered an indicator of a disability, depending on their severity and how the delays impact the child in the classroom (Tr: 128-129).

The Site Supervisor explained that the purpose of Declassification Support Services is to “make sure that the child is meeting the goals as well as if the teacher needs any strategies and the child and the parent need any strategy to continue with the child’s progress” (Tr: 135).

From the documents in this case, the Site Supervisor could tell that the CSE team did not have a formal evaluation of the student, but only an OT Progress Report (Tr: 107).

Beyond these facts, the further testimony of the Site Supervisor is disregarded. The Site Supervisor was not involved in this Student’s CSE meeting and did not hear the Parent’s concerns or Classroom Teacher input that she described is part of the decision process. The Site Supervisor is not an Occupational Therapist; that is a separate discipline that requires a specialized master’s degree and a certification test (Tr: 132-133). The fact that there is overlap between the Kindergarten curriculum and OT goals regarding copying shapes, using appropriate grip, and cutting a zig-zag line (Tr: 130-131) has no bearing on the proper procedure for determining whether a particular child has a disability, nor does the fact that children’s posture is “worked on throughout the day” and an obstacle course can be part of the gym activities in a regular education classroom (Tr: 131-132). Finally, as to Declassification Support Services, the Site Supervisor’s confidence that she, a licensed special education teacher with five years’ experience, would be able to teach to the goals listed in the OT Progress Report (Tr: 134) is not relevant to whether this Student’s classroom teacher will be similarly able without special training.

ANALYSIS AND CONCLUSIONS

The declassification of this Student suffered from a number of procedural violations which substantively denied the Student a FAPE.

At the time of the CSE meeting as Student was turning 5, he still had not met the goals of the Preschool IEP with regard to tripod grasp on writing utensils – an essential task for a Kindergarten student. Based on comparison of the June 19, 2020 goals and Student’s PLOP as reported in the March 6, 2022 OT assessment, it appears that, in two years, Student made only minimal achievement of what had been presented in his pre-school IEP as six-month goals. Critically, it was still a goal for Student to be able to maintain a tripod grasp on a writing utensil 80% of the time. The District here has not carried its burden of demonstrating by a preponderance of the evidence either 1) that the student no longer has a disability, 2) that the services being provided are not specially designed instruction given the nature of the curriculum at this level, or 3) that the need for only Related Services is reason to declassify the student as having a disability.

The OT Progress Report was not an evaluation. As such, it should not have been cause for declassification that the Report did not use the terminology of “significant delay” that triggers a finding of disability. Instead, while Student had made some progress in the past two years (the District had failed to conduct the required annual review in 2021), the minimal extent of that progress should have prompted the CSE to reevaluate the Student. Furthermore, this reevaluation should have included not only his fine motor skills, but also his visual motor skills as mentioned in the preschool IEP, and his gross motor skills – in short, all areas of suspected disability.

Not only did the CSE not properly evaluate Student before declassifying him, they failed to notify the Parent of her right to request evaluations. The District IHR’s argument on summation that if the Parent feels the student requires something different, “there’s always the option of the parent to make a request to the District for … additional evaluations” (Tr: 137) does not discharge the District’s obligation under the IDEA and New York’s Education Law to have notified the Parent of that option as part of the Prior Written Notice.

From the Parent’s articulation of her claims and her description of what was said at the CSE meeting, it is not clear that the DOE representatives at the meeting ever used the word “declassify” or explained to her that they were determining that her child is not a Student With a Disability. The only thing that is clear is that they told her the OT services were going to cease.

The fact that Student might (upon evaluation) need only related services does not preclude him from eligibility under the IDEA. In addition to meeting criteria for a specific disability category, in order to be deemed eligible for special education, a student must by reason of such disability, “need special education and related services” (34 CFR 300.8[a][1]; 8 NYCRR § 200.1[zz]). New York State regulations define “special education” as “specially designed individualized or group instruction or special services or programs” (8 NYCRR § 200.1[ww]; see 20 U.S.C. § 1401[29]; Educ. Law § 4401[2]; 34 CFR 300.39[a][1]). “Special services or programs,” in turn, encompasses related services, such as counseling services, occupational therapy, physical therapy, and speech-language therapy, as well as “other appropriate developmental, corrective or other support services” (Educ. Law § 4401[2][k] [emphasis added]; see Application of the Bd of Educ of the Rush-Henrietta Central Sch. Dist, Appeal No. 21-076 at 30).^[6]

Given the description of Student’s PLOP and the recommendation for continued services in the OT Progress Report, as well as the vehemence with which both the Parent and Classroom Teacher described the Student’s needs, I find that the CSE did not adequately consider that input. It was incumbent upon the CSE to consult with the student’s service providers before finalizing a decision to declassify the student. Here, although the CSE did “consider” the report of the OT, they largely disregarded the recommendations of that report. And, while it is not clear whether the CSE had or considered the preschool IEP, even if a student has met the goals in an IEP, that is not a reason to declassify the student, but rather to set new goals. Here, however, the student had not met even the goals set in the IEP developed two years earlier by the CPSE. The statement by the DOE members of the CSE that there was “nothing they could do” about the decision to terminate his OT services supports the conclusion that they had decided before beginning the meeting that Student was to be declassified.

The CSE also did not identify appropriate declassification support services. The Commissioner’s regulations explain that the purpose of declassification support services is “to aid in [the] student’s transition from special education to full-time regular education.” 8 NYCRR § 200.1[ooo]. The District’s own witness, the Site Supervisor, confirmed this, explaining that the support services might include educating the classroom teacher and/or parent in strategies to ensure the Student’s progress after the removal of special education services. The Declassification Support Services of two 30-minute session per week of OT are the very same frequency and length of sessions that has been recommended and provided to Student since June 2020, when Student was classified as a preschool student with a disability. In other words, the District chose simply to continue services for four months beyond the declassification, and then to stop them. Postponement of the cessation of services before the scheduled goal dates is not declassification support. The Declassification Support Services in the PWN did not include any support for the Student’s regular education classroom teacher to ensure a successful transition to full-time regular education.

Instead, the continuation of OT under the label of “declassification support services” was nothing more than an attempt to mollify the Parent by continuing for an arbitrary period the very services to which they had determined the Student was not entitled. And, since progress toward the goals articulated in the OT Progress Report was to be assessed in three stages and to be reached within one year, the “declassification support services” offered were, in essence, for one third of what was recommended by the professional familiar with the needs and abilities of the Student.

Then, too, although the District’s proffered expert, the Site Supervisor, stated that the purpose of Declassification Support Services is to provide support to the classroom teacher and the parent as well as to the student, there is no mention of such support in the Recommendations Upon Declassification. According to NYS Regulations, declassification support services are provided by appropriately certified or licensed service providers – in this case a licensed Occupational Therapist – “to a student or such student’s teacher(s) to aid in such student’s transition from special education to full-time regular education, including: (1) for the student … appropriate support services; and (2) for the student’s teacher(s), the assistance of supplementary school personnel, and consultation with appropriate personnel.” 8 NYCRR § 200.1[ooo]. There was nothing about these services or their duration that would serve to assist, much less ensure, a successful transition to regular education.

I find that these procedural violations (a) impeded Student's right to a FAPE, (b) significantly impeded Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, and (c) gave rise to a plan that will deprive Student of the educational benefits of OT during the last six months of the 10-month 2022-2023 school year.

Student was denied a FAPE.

ORDER

For the foregoing reasons, it is therefore ORDERED AND ADJUDGED that:

• • The DOE did not provide a FAPE for the 2022-2023 school year;
• • The DOE shall conduct a full evaluation of Student in all areas of suspected disability, including but not limited to:
• • fine motor
• • grapho-motor,
• • visual-motor,
• • sensory processing, and
• • gross motor.
• • The CSE shall convene within 60 school days of the Parent’s consent to evaluate, but in no event later than March 2023, at which time it shall consider information from a comprehensive evaluation of the Student in all areas of suspected disability, consistent with DOE’s child find and triennial evaluation obligations;
• • The DOE shall provide two 30-minute sessions of 1:1 Occupational Therapy through the end of the 10-month 2022-23 school year; and
• • If, after evaluation, the decision is made to declassify the Student, the Service Provider shall consult with Student’s classroom teacher to discuss Student’s classroom performance and progress and/or model activities and techniques that may be of assistance to the classroom teacher to aid Student’s transition to a general education setting. Such consultation shall occur at least once each calendar month during the ten-month school year, at intervals no longer than four school weeks.

SO ORDERED.

Dated: August 15, 2022 ___/s/ Olivia Sohmer

OLIVIA SOHMER, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

1.

Prior Written Notice of Declassification and Support Services

3/15/22

3

2.

Declassification from Special Education Services and Recommendations Upon Declassification

3/14/22

2

3.

Occupational Therapy Progress Report

3/6/22

2

4.

Parent Due Process Complaint

5/17/22

1

5.

Prior Written Notice of Classification and Recommendation

(Preschool)

6/19/20

2

6.

Preschool Individualized Education Program (IEP)

6/19/20

11

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A.

NONE

APPENDIX

Footnotes

[1] Neither of the District Representatives who appeared on this matter on different dates had this information (Tr: 6-7, Tr: 14), and the pro se Parent indicated only that no different solution to her complaint was ever offered other than that which had prompted her request for an impartial hearing (Tr: 20).

[2] Because the Student is a Preschooler, the original decision compliance date was 30 days after the end of the Resolution Period.

[3] The annual review projected in the 2020 IEP (DOE 6-2) did not occur (Tr: 56).

[4] The Date of this Exhibit was incorrect on the District’s Disclosure List and as stated on the record when it was admitted in evidence. The list of Exhibits was corrected by the District IHR on August 15, 2022 before the record was closed. All exhibits are correctly listed in the Appendix to this decision.

[5] In response to a question on cross-examination, Parent sated that for the 2022-2023 school year, Student will be attending Kindergarten at the same school where he attended preschool, but in a different, sex-segregated building (Tr: 69). There was no evidence that the student’s placement was discussed at the CSE meeting.

[6] This would not mean that every student who needs occupational therapy would qualify as a student eligible for special education; the student would have to fall within one of the disability categories as determined by proper assessment.