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INTRODUCTION
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about July 1, 2022. In the DPC, the Parent alleges that the Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2022-2023 school year. (Ex. A).
The Parent alleged as follows. The Committee on Special Education (CSE) convened on or about March 24, 2022 and recommended placement of the Student in a 12:1:1 special class. The Parent disagrees with the recommendation. In a neuropsychological evaluation of the Student dated April 2022, the Psychologist found that the Student requires hands-on learning and opportunities for 1-to-1 instruction with applied behavior analysis (ABA) certified instructors, and also requires a small, structured classroom with teachers who have experience with Autism. The provision of a 12:1:1 placement in a community school alone denied the Student a FAPE for the 2022-2023 school year. The March 24, 2022 individualized education program (IEP) is substantively deficient in that the present levels of performance fail to describe the Student’s needs, academic deficits, or abilities in any meaningful detail. The goals are not designed to effectively address the Student’s needs, are not measurable, and do contain sufficient specificity. The March 24, 2022 CSE was improperly comprised, and the DOE failed to provide the Parent appropriate prior written notices (PWN) which compromised the Parent’s opportunity to meaningfully participate in the decision-making process.
The Parent requests an order that, for the 2022-2023 school year on a 12-month basis, the Student be provided a special education itinerant teacher (SEIT), individual service for 10 hours per week at a market rate; speech and language therapy (S/L), individual service twice a week for 30 minutes; occupational therapy (OT), individual service twice a week for 30 minutes; and parent counseling and training, individual service, for 60 minutes once per month. The Parent also requests an order that the CSE reconvene and provide the Student with an appropriate IEP that addresses these concerns and incorporates the recommendations of the Psychologist’s evaluation by providing increased supports, services, and therapies.[1]
PROCEDURAL HISTORY
I was appointed on July 12, 2022. On August 3, 2022, the parties agreed that pendency lay in prior unappealed Findings of Fact and Decision (FOFD) 212688 ordering the services of a duly-licensed special education teacher, 1:1, for 10 periods per week; S/L, 1:1, twice a week for 30 minutes; OT, 1:1, twice a week for 30 minutes; and parent training, 1:1, once a month for 60 minutes, all for a 12-month school year. On August 8, 2022, the parties appeared for a pre-hearing conference. At that time, the parties moved for an extension of the compliance period, which I granted. On September 21, 2022, both parties appeared for the hearing. At that time, the parties moved for a second extension of the compliance period, which I granted. The Parent Representative made an opening statement, and the DOE Representative waived its opening statement. The DOE Representative did not seek to introduce any evidence or witness testimony, and stated that the DOE “effectively” conceded that the Student was not provided with a FAPE for the 2022-2023 school year. (T. p. 6, L 1-5). The Parent submitted nine exhibits into the record on consent of the DOE. Included in the Parent’s evidence were witness affidavits from the Parent and the Special Ed Service Provider, which were accepted into the record. The DOE Representative cross-examined the Parent only. The Parent Representative made an oral closing. The DOE Representative waived its closing. (See September 21, 2022 Transcript).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The Parent testified credibly as follows. The Student has been classified by the CSE as a student with Autism. A pre-school IEP dated June 18, 2020 recommended SEIT services 10 hours per week, S/L 1:1 twice a week for 30 minutes, OT 1:1 twice a week for 30 minutes, and parent counseling and training 1:1 once a month for 60 minutes. (Parent Aff. at ¶ 4; Ex. B). The June 18, 2020 IEP stated that the Student “experiences significant delays in her expressive and receptive language development. She is not able to use single words independently to express herself. She needs verbal repetition and visual stimuli to be able [to] understand and comprehend what is said to her. She uses “baby talk” or unintelligible speech to express herself. [The Student] is not able to answer or ask questions.” Student “has difficulties to concentrate and focus on a task. She needs verbal/visual prompting and redirection to be able [to] complete the activity. She is not able to discriminate differences between two objects. [The Student] is not able to follow two step directions independently. She doesn’t understand cause and effect. [The Student] is not able to ask questions and solve problems independently.” (Ex. B-3). Student “is not able to identify or express her emotion. [The Student] is a solitary player. She has difficulties to share material and take turns with her peers.... [The Student] gets easily frustrated when [she] is not understood.” (Ex. B-4).
On or about April 7, 2021, the CSE met to develop a “school aged” IEP for the Student. (Parent Aff. at ¶ 11). The April 7, 2021 IEP recommended an integrated co-teaching (ICT) class in a community school, along with S/L, OT, and parent counseling and training. (Parent Aff. at ¶ 11; Ex. C-9). The Parent disagreed with the appropriateness of the April 7, 2021 IEP and filed a due process hearing request on or about September 1, 2021. In FOFD 212688 dated January 2, 2022, the IHO found that the DOE had denied the Student a FAPE for the 2021-2022 school year and ordered that the DOE fund the services of a duly-licensed special education teacher for the 2021-2022 school year at a market rate for ten periods per week of individual instruction along with the other related services provided in the June 18, 2020 IEP, that the DOE fund an independent neuropsychological evaluation of the Student by a NYS licensed professional of the Parent’s choosing at a market rate, and that the CSE convene within 15 days of a Parental request for an IEP meeting to develop a placement with meaningful and measurable goals to address the Student’s individual academic, behavioral, social and emotional deficits relying on the recommendation of the Student’s independent evaluator. (Parent Aff. at ¶¶ 11-13; Ex. E). Pursuant to this order the Parent had the Student evaluated by the Psychologist, whose April 2022 evaluation states: “IEP Classification/School Placement: Given her current presentation, [the Student’s] IEP classification should remain “Autism,” in order to reflect her diagnosis and to provide her access to appropriate services. [The Student] has the capacity for learning as demonstrated by her intact nonverbal cognitive functioning and well-developed word reading, but she requires hands-on learning and opportunities for 1-to1 instruction with ABA-certified instructors. She also requires a small, structured classroom that is staffed with teachers who have experience with Autism.” (Parent Aff. at ¶ 14; Ex. F-14).
The CSE convened most recently on or about March 24, 2022, and recommended the Student be placed in a 12:1+1 special class. (Parent Aff. at ¶ 15). The Parent participated in this meeting, as she has every other CPSE or CSE meeting she has been invited to, and has always been a cooperative participant in the CPSE and CSE process. (Id. at ¶ 16). The Student’s needs and the Psychologist’s findings were discussed, and the team determined that the Student continued to present with various global delays and deficits. (Id. at ¶ 17). While the March 24, 2022 CSE recognized that the Student required 1:1 academic assistance, they failed to adopt or seriously consider the Psychologist’s recommendations. As a result, I find that the Student’s placement in a 12:1+1 community school, without the individualized special education teacher services that she received as a preschooler and the individualized special education instructional support services that she received for the 2021-2022 school year pursuant to FOFD 212688 denied the Student a FAPE for the 2022-2023 school year. (Parent Aff. at ¶¶ 15-23). The Student has been receiving the individualized special education instructional support services from the Special Ed Service Provider via pendency and is benefitting and progressing as result of these services. The Parent seeks continuation of such service for the remainder of the 2022-2023 school year. (Id. at ¶¶ 24-25). In September 2022, it is anticipated that the Student will enter first grade at the DOE Public School. (Parent Aff. at ¶ 5).
The Special Ed Service Provider testified credibly as follows. The Provider employs over one hundred certified special education teacher who provide direct, individualized special education services to children ages 5-21. (Special Ed Service Provider Aff. at ¶ 5). They offer a six week training course in ABA given by a licensed instructor to their special education teachers. (Id. at ¶ 8). They are familiar with the Student, having provided SEIT services to her pursuant to pendency. (Id. at ¶¶ 9-14). Since they began providing services to the Student for the 2021-2022 and 2022-2023 school years, they have communicated with the Student’s SEIT on several occasions. The Student’s SEIT is a NYS certified special education teacher. According to the SEIT, the Student has demonstrated progress in academic, social/emotional, gross/fine motor, expressive/receptive speech and language, as well as activities of daily living (ADL)/adaptive skills. (Id. at ¶¶ 19-22). The Student requires a great deal of one-to-one support in order to complete her math work and a great deal of redirection to stay focused. The Student benefits from one-on-one support, positive reinforcement, and rewards to stay focused, complete her work, and participate in class. (Id. at ¶ 25). According to the Student’s SEIT, the Student’s best work comes when being one-on-one, and this level of support is very much needed for her. (Id. at ¶ 26). The Special Ed Service Provider provides special education teacher services to school age children at the rate of $200 per hour, which is consistent with rates charged by similarly qualified service providers in the New York City area. (Id. at ¶ 29). The Special Ed Service Provider remains willing and able to provide special education teacher support services to the Student for the duration of the 2022-2023 school year. (Id. at ¶ 30).
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[2] A FAPE “consists of educational instruction specially 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.”[3] To establish that DOE offered a FAPE, it must show that (a) the IEP developed by its CSE through the IDEA’s procedures was reasonably calculated to enable the student to receive educational benefits; and (b) DOE complied with the procedural requirements set forth in the IDEA.[4] An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,[5] and provide for the utilization of sufficient special education services.[6] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’”[7] The DOE has the burden of proof on all matters at this hearing.[8] It has both the burden of production and the burden of persuasion on each claim put forth by the Parent.[9] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[10] Further, the SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”[11] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.[12] Further,
[U[nder State law as set forth above, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement.[13]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
On this record I find that the DOE failed to meet its burden that the Student was provided a FAPE for the 2022-2023 school year, presenting no witnesses or other evidence at hearing. Rather, the DOE Representative indicated on the record that it “effectively” conceded that the Student was not provided with a FAPE for the 2022-2023 school year. (T. p. 6, L 1-5). Moreover, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2022-2023 school year. I credit the April 2022 neuropsychological assessment of the Psychologist, which states that the Student “has the capacity for learning as demonstrated by her intact nonverbal cognitive functioning and well-developed word reading, but she requires hands-on learning and opportunities for 1-to-1 instruction with ABA-certified instructors.” (Ex. F-14). I find that while the March 24, 2022 IEP recognized that the Student required 1:1 academic assistance, the Student’s placement in a 12:1+1 community school, without individualized special education teacher support services (SETSS), failed to provide the Student with educational instruction specially designed to meet her unique needs, and that 1:1 SETSS are necessary to permit the Student to benefit from such instruction. I note that the Special Ed Service Provider that has been providing special education teacher support services to the Student has ABA trained certified special education teachers on staff who can provide the one-to-one instruction necessary for the Student to make progress. (Special Ed Service Provider Aff. at ¶¶ 5, 8). I find that the Student requires ten one-hour periods of 1:1 SETSS per week in addition to the recommended special education programs and services contained in the March 24, 2022 IEP to make educational progress and receive an educational benefit. I further find that the rate of $200 per hour charged by the Special Ed Service Provider for individual special education teacher support services is a reasonable market rate for such services in New York City.
ORDER
- • NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
- • For the entire 12-month 2022-2023 school year, the DOE shall pay the Special Ed Service Provider for the Student to be provided with ten (10) x 60-minute periods of individual 1:1 SETSS per week at a rate of $200 per hour, and shall issue payment directly to the Special Ed Service Provider within 30 days of submission of a copy of the invoice; and
- • For the entire 12-month 2022-2023 school year, the DOE shall provide the following related services:
- • OT, individual service, twice per week for 30 minutes;
- • S/L, individual service, twice per week for 30 minutes;
- • S/L, group of 2, once per week for 30 minutes; and
- • parent counseling and training, group service, once per month for 60 minutes; and
- • On or before the end of April, 2023, the CSE is directed to convene an IEP meeting to develop an appropriate IEP and/or IESP with meaningful and measurable goals to address the Student’s individual academic, behavioral, social and emotional needs; the CSE must incorporate the recommendations of the Psychologist’s April 2022 neuropsychological evaluation when developing the new IEP and/or IESP.
SO ORDERED.
DATED: October 25, 2022
_Philip Sturges___________
Philip P. Sturges
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.
Footnotes
[1] While the DPC also included a request for compensatory services, the Parent Representative did not seek such relief at the hearing.
[2] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[3] Bd. of Ed. v. Rowley, 458 U.S. 176, 188-189 (1982).
[4] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[5] C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).
[6] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; 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.
[7] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[8] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[9] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[10] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
[11] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.
[12] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).