New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574242 - NYC: 227150

FINDINGS OF FACT AND DECISION

Case Number: 227150

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: November 8, 2022, January 4, 2023, and January 27, 2023 Record Closed Date: January 27, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the November 8, 2022 Hearing For the REDACTED REDACTED, Hearing Representative For the Parent REDACTED, Advocate for Parent REDACTED, Parent Names and Titles of Persons who appeared at the January 4, 2023 Hearing For the REDACTED REDACTED, Hearing Representative For the Parent REDACTED, Advocate for Parent REDACTED, Parent Names and Titles of Persons who appeared at the January 27, 2023 Hearing For the REDACTED REDACTED, Hearing Representative For the Parent REDACTED, Advocate for Parent REDACTED, Parent REDACTED, Ph.D., Clinical Neuropsychologist

REDACTED, Applied Behavior Analyst

I. Introduction and Procedural History

On July 7, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by the REDACTED (“REDACTED”). On September 28, 2022, Parent (“Parent” or “Parents”) filed a complaint alleging a denial of a Free and Appropriate Public Education (“FAPE”). At the request of the parties, the two complaints were consolidated. A pre-hearing conference was held on August 2, 2022, status conferences were held on September 9, 2022, September 28, 2022, October 7, 2022, and hearings were held on November 8, 2022, and January 4, 2023 and January 27, 2023. The REDACTED (“REDACTED”) was represented by REDACTED and Parent was represented by REDACTED. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective January 7, 2023.

II. Background

Parent requested independent educational evaluations. The REDACTED filed a due process complaint defending their evaluations, but withdrew the complaint prior to hearing. Parent filed a due process complaint on September 7, 2022, alleging a denial of FAPE for the 2022-2023 school and requesting, as relief, placement at a residential program, and interim services until an appropriate placement can be located. (Exh. A, pages 7-8). The REDACTED did not submit evidence and did not otherwise present a case. Parent had three witnesses on the final day of hearing.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

The REDACTED withdrew its due process complaint, and the allegations will not be discussed in this decision. (Tr. 71-2). The REDACTED did not put on a case or submit evidence.

Student has been diagnosed with Autism Spectrum Disorder, REDACTED Syndrome and ADHD and is classified as “Other Health Impairment”. (Exh. A, Exh. B and Exh. C). The most recent IEP in evidence recommends a program that includes a 12:1:1 classroom, related services and a full-time paraprofessional. (Exh. C, pages 29-30). The uncontroverted evidence is that there was a subsequent IEP meeting that deferred Student to the Central Based Support Team to locate a New York State approved non-public school. (Tr. 72). However, as of the date of the hearing, no placement has been located, and the Central Based Support Team has expanded its search to locate an appropriate residential placement. (Tr. 73). The remaining issues involve Student’s interim program until the program is located.

A neuropsychological evaluation was conducted in June of 2022. (Exh. F). The evaluator found that Student exhibited deficits across all assessed domains. (Tr. 53-4). She presents with severe impairment in her cognitive abilities, and deficits in her receptive and expressive language, processing skills, attention, executive functioning, impulse control and regulation of her emotions and behavior. (Tr. 54-6). Due to safety concerns, as well as Student’s deficits, the evaluator recommended a residential placement. (Tr. 57). In the interim, the evaluator recommended ABA therapy, in the home and at school, to reduce her behavioral challenges, increase her communication and improve her daily living skills, daily speech therapy, occupational therapy, physical therapy and an updated Functional Behavioral Assessment (“FBA”). (Tr. 57). This evaluator recommended fifteen hours per week of ABA therapy, to be split between home and school. (Tr. 68). A second witness, who is a Board-Certified Behavior Analyst recommended a total of twenty hours per week of ABA therapy. The witness was certified as an expert witness without objection from the REDACTED. (Tr. 107-8). The witness, who has had direct interaction with Student and is knowledgeable both about Student, her needs and ABA therapy in general, testified credibly about Student’s needs for an interim ABA program both at home and at school while an appropriate residential placement is located. (Tr. pages 88-93)

The evaluator also recommended additional evaluations including a speech language evaluation, occupational therapy evaluation, physical therapy evaluation and a sensory-praxis evaluation. (Tr. 59-60).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

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 (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" (Rowley, 458 U.S. at 203). However, the "IDEA 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). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (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). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (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); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (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).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), 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 CFR 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 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not put on a case. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

RESIDENTIAL PROGRAM

Parent requests, in her due process complaint, a residential program to address Student’s significant educational and behavioral needs. (Exh. A). According to both parties, the REDACTED has agreed to provide such a placement, and is currently looking for a placement.

INTERIM SERVICES

Parent requests interim services for the 2022-2023 school year until a suitable placement can be located. Parent requests twenty hours per week of ABA services, to be divided between home and school, as well as daily speech and language therapy and occupational and physical therapy. It is unclear from the record the amount of physical and occupational therapy that is being requested. However, Parent provided significant and credible testimony and documentary evidence in support of her request for ABA services and daily speech therapy. (See, Exh. F and Transcript). Therefore, I order the REDACTED to fund twenty hours per week of ABA therapy at a rate not to exceed reasonable market rate, and provide daily speech and language therapy, and physical and occupational therapy as recommended by Student’s most recent IEP from the beginning of the 2022-2023 school year until Student is appropriately placed in a residential program.

INDEPENDENT EDUCATION EVALUATIONS

Regarding IEE’s, the IDEA and it’s New York state counterpart provides, 8 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502:

(1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(i) If requested by the parent, the school districts hall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

The parties do not dispute that Parent requested an independent speech and language therapy evaluation, occupational therapy evaluation, physical therapy evaluation, Functional Behavioral Assessment, and sensori-praxis evaluation. Although the REDACTED initially filed a due process complaint defending its evaluations, this complaint was withdrawn at hearing. Further, the uncontroverted testimony of Parent’s witness demonstrated the need for updated evaluations. Therefore, I order the REDACTED to fund the requested evaluations to be conducted by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
• • The REDACTED shall locate an appropriate residential program for Student.
• • The REDACTED shall fund and/or provide an interim program from the beginning of the 2022-2023 school year until an appropriate residential placement is located. This program shall include a full-time paraprofessional, twenty hours per week of Applied Behavior Analysis therapy, ten hours at school and ten hours at home, to be provided by a Board-Certified Behavior Analyst or Licensed Behavior Analyst, at a rate not to exceed $225 per hour, as well as daily speech and language therapy and occupational therapy and physical therapy as recommended by Student’s most recent Individualized Education Program.
• • The REDACTED shall fund an independent occupational therapy evaluation, speech and language therapy evaluation, physical therapy evaluation, Functional Behavior Assessment, and a sensori-praxis evaluation within fifteen days of receipt of this Findings of Fact and Decision. The evaluations shall be conducted by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

Dated: February 9, 2023

AUDREY DANIEL, 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.

EXHIBITS ADMITTED AT HEARING

REDACTED

None

Parent

Exhibit Number

Number Exhibit Date of Pages

A Demand for Due Process Hearing 09/7/22 9

B IEP 3/15/21 32

C IEP 4/12/22 38

D Letter from Pediatrician 10/26/22 1

E Letter from Psychiatrist 7/1/22 1

F Neuropsychological Evaluation 9/22 29

G FBA Data 2022 4

H Guidance Document 5/11 4

I IEP 11/10/22 40

Impartial Hearing Officer

• • None.