New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574402 - NYC: 227270

FINDINGS OF FACT & DECISION

Case No. City/State: 227270 / 574402

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

School: N/A (hereinafter referred to “Private School”)

Hearing Dates: 8/1/23; 9/7/23

Actual Record Close: November 2, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: November 16, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., Attorney

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about June 30, 2022 regarding the 2022/23 school year (P-Ex. A) 1. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide an appropriate program with services and an appropriate placement (P-Ex. A). The Parent has requested a home program with services. (P-Ex. A; T.pg. 69-80; Supplemental Relief).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on July 1, 2022. A Pre-Hearing Conference was held on September 6, 2022. Status Conferences were held on 11/9/22; 12/12/22; 1/6/23; 1/31/23; 3/9/23; 4/3/23; 5/3/23; 5/30/23; 7/6/23, at which time the Hearing was scheduled for August ^[1], 2023. At the August 1st Hearing, Parent requested an adjournment due to witness availability and the Hearing was scheduled for September 7, 2023. (T.pg.51-52; 60). ^[2]

At the September 7th Hearing, District did not appear and did not present a case. (T.pg.59). The Parent presented exhibits that were entered into evidence, the testimony of four witnesses, and a post-hearing Supplemental Relief.^[3] (T.pg.61-63; 79-80; Supplemental Relief).

Thirteen joint/unopposed extension requests were granted. The record closed on November 2, 2023.

FINDINGS OF FACT

Parent testified Student has been experiencing developmental delay since he was two and was diagnosed with Autism Spectrum Disorder. More recently, Student was diagnosed with OCD and Anxiety (in addition to autism). (P-Ex.G; N).

Student’s developmental delays and ASD diagnosis have made it difficult for him to selfregulate his emotions and behaviors and extremely challenging for him to participate in a full-day school program. (P-Ex.N).

For the 2022-2023 school year, Student transitioned to full-time home instruction with supplemental services and support. He exhibited more anxiety as the 21-22 school year progressed and by the end of the year was often having to leave after having been in school for only an hour (and sometimes less). (P-Ex.N).

Parent testified Student has significant delays in his sensory processing skills that make it difficult to appropriately engage in all areas of his life, especially in a school setting. (P-Ex.E). According to his SEIT, Student’s biggest challenges are not academic, they are behavioral. Student can easily become overstimulated and overly energetic. He lacks self-control, has a short attention span, and is impulsive. He requires 1:1 support and supervision to address these issues. (P-Ex.N).

One of the biggest concerns is Student’s hitting. He also exhibits phrasing and loud repetition, which can be challenging in the classroom. He has difficulty sitting. Another concern is his self-injurious behaviors; sprinting away, destroying property, and food grabbing. (P-Ex.N).

His OCD behaviors and anxiety have made it even more challenging for him to calm himself down if he’s upset, which further affects his ability to sit still and pay attention in class. (P-Ex.D; N).

Student also struggles with significant language and communication delays. His Adaptive Skills are also underdeveloped. (P-Ex.D; N).

On June 1, 2022, the DOE held an IEP meeting to develop an educational program for the 2022-2023 school year. Prior to the IEP meeting, Parent shared Student’s most recent teacher reports from AFB, his SEIT, OT provider, and SLT provider. Student’s reports recommended that he continue to receive intensive 1:1 support, from highly trained professionals with the flexibility needed to support Student’s constantly changing needs. (P-Ex.D). The DOE recommended an ICT classroom in a non-specialized DOE school, with a paraprofessional, related services and parent counseling. Parent and Student’s service providers had concerns that the proposed program did not provide Student with the flexibility, frequency of speech therapy, a 1:1 SEIT, and RPM instruction he needed to make meaningful progress. (P-Ex.B; N).

On June 15, 2022, Parent wrote to the CSE team to reiterate the concerns with the DOE’s recommended program and that Parent had not received a recommended school location. Parent testified they did not receive a recommended school placement for the 2022-2023 school year. (P-Ex.B; N).

Parent testified Parents, the providers, and the staff at Student’s school, decided it would be best for Student to be schooled entirely at home. Student was provided home instruction for the 2022-23 school year. (P-Ex.N).

A neuropsychological evaluation was performed in June 2022. According to the evaluation, Student has a significant presentation of ADHD, high levels of distractibility and impulsive behaviors, problems with executive functioning (especially when transitioning), significant anxious presentation, problems with self-regulation, OCT behaviors, sensory integration weakness, adaptive concerns, significant problems with functional communication. According to the report, it is vital Student receives full-time home-based instruction, where he can be provided with a curriculum that is appropriately stimulating and challenging, and specifically tailored to his needs, is appropriately flexible, and is able to be adapted given his complex neuropsychological and developmental profile. His program should be distraction-free and within a sensory-neutral setting, given his propensity to be easily overwhelmed and overstimulated. He should have flexibility to take as many movement breaks as possible. His home-based instruction should also include improving activities of daily living and adaptive skills, increased support for his motor and communication development, and meaningful opportunities for socialization. The RPM method was also recommended for him. The evaluator specifically said that “a paraprofessional would not be sufficient to meet these needs given their lack of proper training with the highly specialized, sensitive nature of [the RPM method] as it pertains to [Student]’s specific profile.” (P-Ex.G; N).

On average, Student received 25 hours of 1:1 SEIT instruction and support, per week between August 2, 2022, and June 30, 2023. Student also received OT up to 3.45 hours per week and SLT up to 3.45 hours per week. (P-Ex.N).

Parent testified despite the challenges and transitions during the 2022-2023 school year, Student made progress in both his academics and social development. Student was able to complete about two thirds of the 8th grade ELA curriculum and almost all of the 8th grade math curriculum. Student also improved in his ability to communicate using his ACC device. Student’s OT provider taught him exercises to help his ability to self-regulate. (P-Ex.N).

Parent testified they cooperated with the DOE and provided consent, participated in IEP meetings, and complied with all DOE requests. (P-Ex.N).

Parent requested:

a. 25-30 hours of 1:1 teaching per week from a special education certified teacher at the rate of $100/session;

b. 15 hours of trained instructor support per week;

c. up to 5 hours of program support and oversight from a special education certified teacher at the rate of $100/session;

d. 5x45-minute sessions of speech per week, $175/session;

e. five 45-minute sessions of OT per week, $67.50/session; (through RSA) f. up to two sessions of PT per week, $120/session for total of $7,320;

g. withdrawn h. all costs and expenses for team training and/or expert consultation in amount of $1,780;

i. up to 4 hours per month of individualized parent training and counseling; and

j. tuition and costs for online school/programming/instruction for a total amount of $578. (P-Ex.N; Supplemental Relief).

SEIT Provider testified for the 2022-223 school year, Student continued to experience heightened anxiety and has also at different points hit one of his former SEITs, his parents, and his therapists. He developed some new OCD behaviors, self-injurious behavior, continued to verbalize words and phrases repetitively and at times loudly with a great need for redirection. All of these behaviors can significantly interfere with his learning. (P-Ex.L).

For the 2022-2023 school, Student received home instruction with SEIT support. Because of increased anxiety and OCD behaviors that had worsened by the end of the SY 21-22 and because those behaviors had continued to worsen over the summer of 2022, it became clear to Student’s parents and team, that being in an ICT classroom was not going to be an appropriate setting. In the absence of another school placement, Student began the school year with home instruction with SEIT report and continued throughout the school year. (P-Ex.L).

For his home instruction, Provider provided SEIT service Monday-Friday, from 7:30 am10:30 am and 11:30 am-1:30 pm, dedicated to academic courses that included math and science instruction, typing and communication, and sensory and fine motor activities (including handwriting). (P-Ex.L).

Between 10:30 am and 11:30 am, Student engaged in physical activities with either a physical therapist or a caregiver who has been trained by the physical therapist. Student’s mother, who is a trained and experienced teacher, provided humanities instruction over the course of two to three, 20-30-minute classes during the late afternoon. These classes were interspersed with activities such as arts and crafts, supervised play dates with neighborhood friends, personal training, reading the newspaper, and online clubs with other teenagers around the country who also type and use the letter board to communicate. (P-Ex.L).

Provider used Rapid Prompting Method with adaptions and accommodations. In addition to academic instruction, Student also worked on his Fine motor skills, social/emotional development, physical/motor development, language and communication skills, and ADL skills. SEIT Provider testified to Student’s progress throughout the 2022/23 school year. (P-Ex.L; D; H); See also Speech and OT Provider testimony, Ex.K and M, with progress reports at Ex.E; F; I; J).

SEIT Provider testified Student received approximately 25 hours per week of 1:1, home based, instruction. Provider testified it was an appropriate level of intervention and without high levels of support from SEITs and RPM trained instructors, Student would be unable to engage in curriculum and academics that are commensurate with his intelligence. Provider testified:

Based on my experience and knowledge of [Student], an appropriate educational program for [Student] was to receive instruction from a SEIT at home and in the community to support a gradual transition towards returning to learning at a school.

The one-on-one support described above to enable the flexibility and customization he needs in order to engage in instruction. At this point, a reduction or change in services is not recommended for [Student]. (P-Ex.L).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of 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 Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (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 (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program 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.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District did not appear and failed to meet its burden in demonstrating that the District provided the Student with FAPE during the 2022/23 school year. The evidence presented by the Parent in the form of evaluations and testimony is that Student suffered from autism spectrum disorder that resulted in severe developmental delays. Parent testified the District did not provide a timely or appropriate program. The unique circumstances demonstrate that Student required the home services set forth in my Order.

Based on all of the above, I find that the District did not provide the Student with FAPE for the 2022/23 school year and the program developed by Parent and the providers was appropriate. Decision and Parent’s Requested Relief

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 12-month 2022/23 school year. Student is entitled to the program and services as set forth in my Order.

Parent’s remaining requests are denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDER THAT, District shall reimburse Parent and/or fund the following for the 12-month 2022/23 school year:

• 25-30 hours/week of 1:1 teaching from a special education certified teacher, by a licensed provider of Parent’s choosing, at a rate not to exceed $100/session;

• 15 hours of trained instructor support per week, by a licensed provider of Parent’s choosing, at market rate;

• Up to 5 hours of program support and oversight from a special education certified teacher by a licensed provider of Parent’s choosing, at a rate not to exceed $100/session;

• 5x45-minute sessions of speech per week, by a licensed provider of Parent’s choosing, at a rate not to exceed $175/session;

• five 45-minute sessions of OT per week, by a licensed provider of Parent’s choosing, at a rate not to exceed $67.50/session;

• up to two sessions of PT per week, by a licensed provider of Parent’s choosing, at a rate not to exceed $120/session for total reimbursement to Parent of $7,320.00;

• Fund and/or reimburse Parent all costs and expenses for team training and/or expert consultation in amount of $1,780.00;

• up to 4 hours per month of individualized parent training and counseling, by a licensed provider of Parent’s choosing, at market rate; and

• Fund and reimburse Parent the costs for online school/programming/instruction for a total amount of $578.00.

SO ORDERED

DATED: November 16, 2023

David R. Gronbach

David R. Gronbach, 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

N/A

PARENT EVIDENCE

A. Demand for Due Process and email confirmation 07/01/22 14 pages

B. 10-Day Letter and email confirmation 06/15/22 07 pages

C. Email Correspondence from Parents to DOE 04/28/22 01 pages

D. Annual Educational Progress Report April 2022 14 pages

E. Occupational Therapy Progress Report 04/07/22 06 pages

F. Annual Speech-Language Progress Report 04/14/22 05 pages

G. Neuropsychological Re-Evaluation 08/01/22 18 pages

H. Annual Educational Progress Report June 2023 16 pages

I. Occupational Therapy Progress Report 06/12/23 04 pages

J. Annual Speech-Language Progress Report 06/21/23 05 pages

K. Affidavit of ST 08/30/23 07 pages

L. Affidavit of SEIT Provider 08/29/23 13 pages

M. Affidavit of OT 08/30/23 07 pages

N. Affidavit of Parent 08/30/23 12 pages

O. License and Resume ST Undated 05 pages

P. License Undated 02 pages

Q. License and Resume SEIT Undated 06 pages

R. License of [REDACTED] OT Undated 02 pages

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.