New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 227372

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: August 9, 2022

September 8, 2022

October 7, 2022

December 20, 2022

January 12, 2023

March 24, 2023

Actual Record Closed Date: April 27, 2023

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of [REDACTED] (“the student”) was conducted by me (remotely via videoconference.)

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated July 1, 2022. (Ex. A) I was appointed Impartial Hearing Officer on July 11, 2022 A prehearing conference was conducted on July 11, 2022. Numerous status conferences were conducted and evidentiary hearings were held on January 12, 2023, and March 24, 2023. Pursuant to pendency agreement between the parties the district agreed to provide the services sought by the parent in this matter during the pendency of this matter. (Ex. II)

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing statements and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date May 12, 2023..The record closed on April 27,2023,

Positions of the Parties

The parent asserts that the May 12, 2022 IEP was substantively and procedurally deficient and that the district failed to provide a FAPE for the 2022-2023 school year (“SY”) . The parent seeks an order providing the following after school services from providers of the parent’s choice at market rate ABA (15 hours per week) in a 12 month program; PROMPT Therapy (3 x45 minutes per week) in a 12 month program. (Exs. A, II)

The district asserts that the district provided a FAPE for the 2022-2023 SY. Further, it claims that the parent has failed to establish that the requested after-school services are necessary for educational benefit and that therefore the requested relief should be denied. (Ex. I)

Cases Presented

Documents submitted by both parties were admitted into evidence. (A list of documents in the record is appended)

The district presented the testimony of: the student’s special education teacher for the 2021-2022 SY and a participant in the May 2022 review (“the spec. ed teacher”); the student’s speech-language teacher (co-teacher of the class (T68) for the 2021-2022 SY and a participant in the May 2022 review (“the SL teacher”); the BCBA who worked with the student’s classroom teachers during the 2021-2022 SY(“the district BCBA”)

The parent presented the testimony of: the provider of the after-school ABA services (“the home ABA provider”); the after school PROMPT therapist (“the PROMPT therapist” ) the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

A Factual Findings

With regard to the testimony of the witnesses, I find the testimony of each credible in that I conclude that they each testified in accordance with their recollections and as to the opinions they held. I find that:

The student, a third-grader in an alternate assessment program,, is classified as Multiply Disabled and attends District 75 program for the 2022-2023. (Exs. 8, A) The student has received ABA and PROMPT therapies since Early Intervention. (Exs. A, B , S; T261-262) He is non-verbal, using sounds and gestures to communicate and presents with significant developmental delays in cognition, language, communication, fine and gross motor skills and activities of daily living (“ADL”) and has been diagnosed with Autism Spectrum Disorder (“ASD”), global developmental delay, mixed receptive/expressive language disorder strabismus, dysmorphic features, developmental coordination disorder , seizure disorder and Apraxia. (Exs. A, B, C, D, E, U,8) He demonstrates various self-injurious behaviors and tantrumming. (Ex. T; T114-115) In the 2021-2022 SY the student presented with a “severe intellectual impairment and disorder” and minimal levels of interest motivation and frustration tolerance with intensifying selfinjurious behaviors by the end of the school year. (T91-93, 86-87) For the 2021-2022 SY although the student was formally recommended for a 6:1:1 program, the student was in an AIMS (Acquisition, Integrated Services, Meaningful, Communication, and Social Skills) program, offered kindergarten-2nd grade, which was a “pilot program” which provided a 6:2:1 program with the teachers being a special education teacher and a speech-language teacher who was present throughout the day. (Ex. 8; T65-69, 91, 141-145) The program was designed to give students intensive training using verbal behavior and applied behavior principles to help children with severe social emotional, communication and learning deficits. (Ex. 8-4) The student also received substantial related services and a 1:1 paraprofessional. (Ex. B) BCBA support for school personnel on behalf of the student was provided. (Ex. C) A BIP was not created for the student. (Ex. C) District staff confirmed that progress they reported during the 2021-2022 SY could have been attributable at least in part to home based therapy which the CSE was aware of. (Exs B, 8;;T115,165) Progress in the home-based program had been reported to the CSE. (Exs. J, K, L, M) For the 2022-2023 SY the student, who had aged out of the AIMS program, was placed in a 6:1:1 Verbal Behavior program (“VB”). He continued to receive related services and a 1:1 paraprofessional. (Ex. 8, T69) No formal evaluation was conducted prior to the development of the 2022-2023 SY IEP. (T93-94) The BCBA support previously provided was terminated for the bulk of that school year. (Ex. 8; T163) A Functional Behavior Assessment, dated May 25, 2022 was created. (Ex. 5) The CSE concluded that a Behavior Intervention Plan was not required. (Exs. 8, 6) However, a Student Behavior Management Plan was completed shortly after the review. (Ex. 4)

B Conclusions

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. 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 school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR§200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP. School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof in this proceeding.

An appropriate educational program begins with an Individualized Education Program (IEP) which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). While school districts are required to comply with all Individuals with Disabilities Education Act procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F. 3d 377, 381 [2d Cir. 2003]) If a procedural violation has occurred, relief is warranted only if the violation affected the student's right to a free appropriate public education (FAPE) (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, seriously infringe on the parents' opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 [S.D.N.Y. 2005]; W.A. v. Pascarella, 153 F. Supp. 2d 144, 153 [D. Conn. 2001]), or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch. Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the CSE, the Second Circuit has observed that “for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. of Educ., 231 F.3d 96, 103 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142 F.3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. However, “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….” and “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.” Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). The student's recommended program must also be provided in the Least Restrictive Environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

In the instant matter, I find no basis for a conclusion that the IEP was reasonably calculated to result in meaningful progress in light of the student’s circumstances. I note the limited progress made in critical areas even with the addition of substantial 1:1 ABA and PROMPT therapy and a program that provide more support than the program recommended for the 2022-2023 SY. I conclude that nothing in the record supports a conclusion that it was reasonable to conclude that the student would make progress appropriate in his circumstances with the removal of the at-home therapies coupled with a program acknowledged by district witnesses to be less restrictive. I note that no new evaluations were conducted and the testimony of the district witnesses did not support a conclusion that the progress reported by them would have been made absent the above described circumstances in the 2021-2022 SY. I find no basis for a conclusion that the provision of the requested services in the circumstances here constitutes “maximization” of the student’s potential. I find that the district has not met its burden to establish that it provided a FAPE for the 2022-2023 SY. In view of that conclusion, I do not address the parent’s other claims regarding deficiencies.

The district asserts that the requested services should be denied even in the event of a conclusion that the district failed to provide a FAPE. (Ex. I) With regard to that claim, it is well established that it is not the parent’s burden to establish the appropriateness of the relief sought. I have concluded that the district has failed to establish that it provided a FAPE. Further, I conclude that the evidence supports my conclusion that the services sought by the parent address the student’s educational needs and that he progressed in the areas addressed. (Exs. S, T) I note that the district has not rebutted parent claims that ABA methodology is an appropriate methodology in view of, among other things, the student’s behaviors and that PROMPT therapy is appropriate to aid with vocalizations, a substantial student deficit.. The district has not challenged the student’s need for a 12 month program with regard to the relief sought. Further, I note with regard to the district’s claims with regard to generalization that that is only one of parent claims regarding the student’s need for the requested services and in this matter I have concluded that the district has failed to establish that the student was likely to have made prior asserted progress in the classroom in the 2022-2023 SY absent the additional support he received in the prior school year. See Appeal No. 14-125. I also conclude that the the testimony of the home ABA provider as to the changing nature of the student’s self-injurious behaviors and the need to address that was, persuasive. (T241-246)

ORDER

It is hereby ordered that: The district shall fund for the 2022-2023 SY 12-month program) from appropriately qualified providers of the parent’s choice at market rate:

ABA for 15 hours per week after school PROMPT Therapy three times weekly for forty-five (45) minutes after school

Dated: April 29, 2023

_________/s/

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

1. District PT Evaluation, 8/3/2021, 5pgs. DOE

2. OT Evaluation, 8/3/2021, 18 pgs.

3 Functional Vision Assessment, 8/5/2021, 5 pgs.

4 Behavior Modification Plan, 5/25/2022, 5 pgs.

5 FBA, 5/25/2022, 5 pgs.

6 Consid. Of Stud. Need for FBA, 5/27/2022, 3 pgs.

7 OT Clinical Guide, 6/7/2022, 2 pgs. DOE

8. IEP, 5/12/2022, 35 pgs. DOE

9. Psychological Evaluation, 2/02/2022, 3 pgs. DOE

10. Prior Written Notice, 6/7/2022, 4 pgs. Parent DOE

A. Impartial Hearing Request 7/1/22 7pp. B Findings of Fact and Decision (IHO Case 1/29/21 10pp. #194838)

C. Individualized Education Program 5/6/21 25pp.

D. Individualized Education Program 2/27/20 19pp.

E. Individualized Education Program 5/2/19 18pp.

F. Devel. and Pediatric evaluation Initial Visit 11/8/17 8pp. G Revisit 11/22/17 4pp.

H. Pediatric Evaluation Site Revisit 11/28/17 6pp.

I. Letter from Devel. and Behavioral Pediatrician 11/28/17 1p.

J. ABA Progress Report by Home ABA Provider 2/1/20 3pp.

K. ABA Progress Report by Home ABA Provider 7/27/19 5pp.

L. Progress Report for PROMPT Therapy 2/18/20 1p.

M. Progress Report for PROMPT Therapy 8/11/19 1p.

N. PROMPT Speech Motor Evaluation 11/15/17 7pp.

O. Psychoeducational Evaluation Report 1/23/20 5pp. P Classroom Observation 1/31/20 1p.

Q. AIMS Program Student Observation Report 2020 4pp.

R. School Progress Report – 1st Marking Period 2020-2021 15pp. S Findings of Fact and Decision (IHO Case 3/12/22 17pp. #209276)

T. ABA Progress Report by Home ABA provider 12/21/22 2pp.

U. Progress Report for PROMPT Therapy 12/27/22 3pp. Impartial Hearing Officer I District Closing II Parent Closing