New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576265 - NYC: 228972

FINDINGS OF FACT AND DECISION

Case Number: 228972

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: August 24, 2022

September 29, 2022

October 25, 2022

Actual Record Closed Date: November 28, 2022

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 XXX (“the student”) was conducted by me (remotely via videoconference).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated July 6, 2022. (Ex. A) I was appointed Impartial Hearing Officer on July 21, 2022. An evidentiary hearing was conducted on October 25, 2022. The district did not appear and was defaulted.

Parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript 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 is December 18, 2022. The record closed on November 28, 2022 upon my receipt of the final transcript (hard copy)..

Positions of the Parties The parent asserted that the district had no created an IEP for the 2022-2023school year (“SY”) and that, accordingly, the district failed to provide a FAPE. In the hearing request the parent request the program, with specified in-school and after school ABA and related services, special education transportation and related matters, as set forth in the Order section below. (Ex. A) At the hearing the parent also requested the addition of parent training sessions and BCBA supervisory sessions not specified in the hearing request. (T33-34)

The district, which did not appear for the evidentiary hearing and was defaulted has not asserted a position with regard to parent claims.

Cases Presented The district presented no evidence, testimonial or documentary.

The parent submitted documents which were admitted into evidence (a list of documents in the record is appended) and the testimony of: the BCBA who supervises the student’s program; the parent.

Findings of Fact and Conclusions of Law 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.

In this matter the DOE has not claimed and has not established that it provided a FAPE for the 2022-2023 SY but rather did not appear and was defaulted. In these circumstances, therefore, the district has not challenged factual assertions made by the parent’s witnesses concerning the student’s need for the relief requested in the hearing request, which evidence I find credible and persuasive. I note that it has stated no objections to the relief requested in the hearing request. I conclude that the district has tacitly admitted that the student is entitled to those requested services. Further, I find that the relief requested is supported by the testimony and documentary evidence. The parent’s request as set forth in the hearing request is therefore granted.

However, at the hearing the parent requested, in addition, parent training and counseling and supervisory ABA hours. The parent has acknowledged that the need for those additional services was not addressed in the hearing request. (T 79, 100) I note  Application of the Bd. of Educ., Appeal No. 11-134:: "It is well settled that a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 C.F.R. §§ 300.507[d][3][i], 300.511[d]; 8 NYCRR 200.5[j][1][ii]) or the original due process complaint is amended prior to the impartial hearing per permission given by the impartial hearing officer at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 C.F.R. § 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]; see M.R. v. South Orangetown Cent. Sch. Dist., 2011 WL 6307563, *12-*13   [S.D.N.Y. Dec. 16, 2011]; C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722,*13 [S.D.N.Y. Sept. 22, 2011]; R.B. v. Dep't of Educ. of City of New York, 2011WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011]; W.M. v. Lakeland Cent. Sch. Dist., 2011 WL 1044269, *8 [S.D.N.Y. Mar. 10, 2011]; M.P.G. v. New York City Dep't  of Educ., 2010 WL 3398256, at *8 [S.D.N.Y. Aug. 27, 2010]; Application of the  Bd. of Educ., Appeal No. 11-111; Application of a Student with a Disability, Appeal No. 11-100; Application of a Student with as Disability, Appeal No. 11-008; Application of a Student with a Disability, Appeal No. 11-042; Application of the Bd. of Educ., Appeal No. 11-038). Accordingly, the request for the additional services is denied. ^[1]

ORDER

IT IS HEREBY ORDERED that the DOE is directed to provide the student with the following services for the entire 2022-2023 twelve month school year:

1. Placement in a barrier free 8:1:1 class;

2. Five 30-minute sessions per week of 1:1 speech-language therapy with a PROMPT trained therapist;

3. Three 30-minute sessions per week of 1:1 occupational therapy;

4. Three 30-minute sessions per week of 1:1 physical therapy;

5. Limited travel time special education transportation (not to exceed 60 minutes);

6. Full-time 1:1 ABA therapy (the entire school day);

7. Ten hours per week of home based ABA therapy;

8. In school ABA services not delivered in school due to student absence as a consequence of her medical diagnosis to be delivered at home;

9. Services to which the student was entitled pursuant to the pendency order in this matter which were not delivered although the student was available to receive them are to be provided as compensatory services or some other method unless de minimis.

Dated: December 11, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

NONE

Parent

A Impartial Hearing Request, 7/06/2022 14pgs.

B FOFD Case #210757, 4/23/2022 11pgs.

C Pendency Agreement 8/25/2022 3pgs.

D WITHDRAWN

E FOFD in Case # 196188, 6/16/2021 6pgs.

F FOFD in Case #184624 4/20/2020 6pgs.

G Neuropsychological Eval. 3/20/2021 15pgs.

H SETSS-ABA Prog. Rprt 6/30/2022 13 pgs.

I ABA Provider/Parent Service Agree. 10/3/3033 2 pgs.

J SETSS_ABA Progress Report 9/30/2022 16 pgs.

Impartial Hearing Officer

NONE

Footnotes

[1] Further, I note with regard to parent training that the evidence shows that substantial ABA services, including services directly supporting in-school instruction are delivered routinely at home when the parent is present, and with regard to the supervision requested, that that has been routinely provided as part of the student’s program. The evidence in this matter supports the conclusion that the student has progressed in the current program. (T52-57, 59)