New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 241710

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: March 3, 2023

April 21, 2023

May 9, 2023

May 23, 2023

Actual Record Closed Date: June 20, 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 teleconference

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated November 4, 2021. (Ex. 1) I was appointed Impartial Hearing Officer on January 4, 2023. A prehearing conference was held on January 25, 2023. An Amended Hearing Request dated March 20, 2023, was filed March 21, 2023. (Ex. A)

Parties moved to extend the compliance date on various occasions to enable amendment of the compliant, anticipated testimony, the scheduling of witnesses and submission of evidence, and receipt and consideration of the transcripts and closing statements. 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 July 4, 2023. The record closed on June 20, 2023.

Positions of the Parties

The parent asserts a failure of implementation with regard to the November 3, 2021 IEP and that the November 21, 2022 IEP was procedurally and substantively defective and that the parent was denied a meaningful opportunity to participate in its development. Accordingly, the parent claims, the student was denied a FAPE for the 2022-2023 school year (“SY”.) The parent seeks, among other thing, a placement in a non-public school with which the district is authorized by the State Education Department to contract for the delivery of special education services (an “NPS”) or in the alternative to provide a 12:1:1 12-month program consistent with the recommendation of the January 15, 2021 Neuropsychological Evaluation. ^[1] (Exs. A, II; T90-94)

The district asserts that a FAPE was provided for the 2022-2023 SY, that to the extent there may have been procedural violations they do not rise to the level of a FAPE deprivation and were promptly corrected and that the parent unreasonably rejected appropriate offers of placement and was not forthcoming in this proceeding. (Ex. IT88-93)

Cases Presented

Both parties submitted documents for admission into evidence. A list of documents in the record is appended.

The district presented the testimony of the student’s guidance counselor who was a participant in both reviews (“the guidance counselor”). The parent presented the testimony of the student’s mother (“the parent”).

Findings of Fact and Conclusions of Law

A Initial Factual Findings

Credible testimony supported by documentary evidence establishes the following:

The student received Early Intervention services and evaluations before turning 3 revealed significant delays in expressive and receptive language, low average cognitive functioning and delays in fine motor skills and sensory processing. An IEP was created by the CPSE mandating a 12:1:2 setting with related services. The student was removed from preschool after 2 weeks due to difficulties in separation, adjusting to preschool and constant crying and tantrums. During the 2020-2021 SY, he attended Kindergarten remotely in a 12:1:1 classroom due to the pandemic and received various services. (Ex. D)

A Neuropsychological evaluation was conducted December 2020-January 2021. (Ex. D) The student was diagnosed with: ADHD, combined presentation; Speech Sound Disorder; Developmental Coordination Disorder; Unspecified Neurodevelopmental Disorder. Tantrums at home and in school and impulsivity were noted. Recommendations included a 12 month 12:1:1 program and that if a community school setting is unable to provide the support required a specialized non-public school was “strongly recommended.” A fulltime 1:1 paraprofessional was also recommended. (Ex. D)

The student commenced attendance at a community school, his current district placement (“the School”), for 1^st grade (2021-2022 SY) On November 3, 2021 an IEP was developed which recommended Special Classes 12:1:1 (25 periods per week) in all core subjects, related services (OT, Counseling and SLT) and a full time 1:1 Paraprofessional for Behavioral Support. ESY services were not provided. The parent was in agreement with the program. The IEP states that ICT was rejected because it would not meet the student’s global delays. (Ex. 2) The parent was familiar with the School which was in the family’s neighborhood and which family members attended (Ex. 1) The student continued the 2021-2022 SY in the recommended program.

The student commenced in the School in September 2022 in a 12:1:1 program. It was thereafter determined by School staff that there were insufficient students to maintain that class and it was terminated (“collapsed”). The student was placed in an ICT class. (Ex. 1) The specific date that that occurred is not in the record, but credible testimony indicates that it was in late September early October 2022. (T104-105) It is undisputed that the parent was not informed prior to the change. (T121) She learned about it in mid-October in conversations with a teacher about the student’s difficulties (Ex. 1; T142) No formal notice was provided.

The parent consulted with a well-established advocacy group which obtained a Nickerson letter for her and also suggested utilization of the impartial hearing process. (Exs. G, 14; T147-148, 150) Although the Nickerson letter is dated October 24, 2022, the date the parent received it is not in the record. The parent was thereafter informed by the advocacy group that there were no available NPS placements in the borough in which she lived. (Ex. 1) The parent was concerned about the length of the trip and other issues in view of the student’s disabilities. (Ex. 1, T 159)

On November 4, 2022, the parent filed, pro se, an impartial hearing request seeking return to the School in his original 12:1:1 program or the provision of an appropriate non-public school program. (Ex. 1)

By School Assignment Form dated November 14, 2022, the parent was informed the student was assigned to a school a significant distance from her home. (Ex. 13) There was no prior communication with the parent concerning possible placements.

The CSE convened on November 15, 2022 and recommended: ICT 18 periods a week; related services (OT, SLT, Counseling); Paraprofessional Behavior Support (full time 1:1); Compensatory SETSS services due to periods of remote and blended learning beginning March 2020. The IEP specifies that a 12:1:1 special class was considered and “thought to be too restrictive.” (Ex. 4) The parent disagreed with the program as did the guidance counselor who was a participant during parts of the meeting. (Ex. 4; T 115, 131-132)

The student continued to receive related services at the School, but his attendance was intermittent. (T116-118) There were numerous paraprofessional absences, and the School could not obtain replacements on those occasions resulting in concerns about student safety. (T125-126)

The parent thereafter obtained legal representation and an Amended Due Process Complaint was filed on March 21, 2023, which requested, among other things, a 12:1:1 placement in a 12-month program in a non-public school. (Ex. A)

BConclusions

Failure to Implement the November 2, 2021

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP. 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320. “[A] party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” J.L. on behalf of J.P. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2, 2011); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026 JS WDW, 2011 WL 3919040, at *13 (E.D.N.Y. Sept. 2, 2011), aff'd, 506 F. App'x 80 (2d Cir. 2012); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243, 1251 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003](holding that the IDEA is violated when a school fails to implement an “essential” element of an IEP, i.e., an element “necessary for the child to receive an educational benefit.”); Van Duyn ex rel. Van Duyn v. Baker Sch. Dist., 5J, 502 F.3d 811, 818 [9th Cir. 2007].

In reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP which were not followed were substantial or "material." A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010]; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73, 75-76 [D.D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program].

In this matter it is undisputed that the student was unilaterally without any notice to the parent moved from a 12:1:1 special class to a less supportive ICT class. That is more than a minor discrepancy in program. I conclude upon review of the evidence that no actual placement offer alleging a comparable placement was made until November 14, many weeks after the unilateral change and after the parent filed an impartial hearing request. I conclude that a material failure to implement the IEP even if the proposed location was appropriate. Has been established.

However, I note that the parent’s assertion that, among other things, the proposed school was too far away in view of this student’s disabilities has not been contested by the district which presented no evidence indicating the length of the average trip by school bus. The mere offering of another placement does not demonstrate that the location was an appropriate substitute. Although it appears that other schools were informally discussed, I conclude that the evidence indicates that that was subsequent to the November 14 offer and that there is no basis in the record for a conclusion that any were appropriate substitutes in view of this student’s disabilities. I give no weight to parental confusion concerning alternatives discussed and note that the district has submitted no evidence with regard to that issue and that no offer, formal or informal, but for that made on November 14 has been established.

November 21, 2022 IEP

In this matter in which the student was not unilaterally placed, the district has the burden of proof with regard to all issues. SRO 11-053. N.Y. Education Law §4404[1][c]. The parent asserts, among other things, that the November 21, 2022 IEP was substantively and procedurally defective. It is well established that an IEP does not on its own without testimony to explain its appropriateness and establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Rather than supporting the IEP, the district’s sole witness in this proceeding testified that she believed that the IEP was not appropriate, and that the student required more support than ICT provided. 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). I find no basis for a conclusion that the district has met its burden to establish that in this case. I give no weight to the district’s claim that the district was foreclosed from making an appropriate recommendation due to the parent’s resistance to another location. The responsibility of the CSE is to make a recommendation it believes is substantively appropriate. I find, based upon the foregoing, that the November 21, 2022 IEP did not provide a FAPE. In view of that finding I do not address other parent claims concerning the November 21, 2022 IEP.

Requested Relief

The parent seeks a 12-month program in a non-public school that can implement the recommendations of the Neuropsychological Evaluation. The district notes substantial authority in support of its position that prospective relief of that nature is disfavored as it may circumvent the statutory process by usurping the CSE’s role and, further, that services appropriate for one year may not be appropriate for the next. See Ex. I. However, the authorities cited acknowledge that there are circumstances where the requested relief may be appropriate. Further, I note that compensatory services in the form of a prospective placement have been permitted in appropriate cases. Further, I note that the district has not disputed the evaluation recommendations or presented any evidence to support a conclusion that the program the district proposed, which recommendation is in effect for part of the 2023-2024 SY is appropriate. Under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.

I conclude that in this matter the relief sought is appropriate. A deferral to the CBST for an NPS 12-month placement in a 12:1:1 program is therefore ordered. Subsequent party agreement upon a district program sufficiently consistent with the Neurological Evaluation is not precluded by this order.

ORDER

The CSE shall defer this matter to the CBST to place the student for the 2023-2024 SY in a 12 month 12:1:1 program in an NPS which can implement the recommendations of the January 15, 2021 Neuropsychological Evaluation.

Special education transportation in accordance with OPT procedures shall be provided.

Dated; June 21, 2023

________/s/_____________

JUDITH SCHNEIDER, 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

District

1	DPC 11/04/21 1pg.
2	IEP 11/03/21 31pgs.
3	Prior Written Notice 11/19/21 4 pgs.
4	IEP 11/15/22 27 pgs.
5	Attendance Record (RISA) 05/09/23 1 pg.
6	Report Card (2022-2023) 05/09/23 2 pgs.
7	Neuropsychological Evaluation 01/15/21 10 pgs.
8	FBA-BIP 10/07/21 12 pgs.
9	Occupational Therapy Clinical Guide 11/30/22 1 pg.
10	Progress Report 10/22/21 4 pgs.
11	Classroom Observation 04/20/21 2 pgs.
12	Social History 04/20/21 3 pgs.
13	School Assignment Form (Placement Offer) 11/14/22 3 pgs.
14	Nickerson Letter (P1) Package 10/24/22 10 pgs.
15	Weekly Schedule Undated 2 pgs.
16	WITHDRAWN

Parent

A	Amended Due Process Complaint, 3/20/23, 5 pgs.
B	WITHDRAWN
C	WITHDRAWN
D	Neuropsychological Evaluation , 1/15/2021, 10 pgs.
E	Email from parent to DOE, 1/10/23, 1 pg.
F	Email conversation with guidance counsellor, 1/13/2023, 2 pgs.
G	Affidavit Testimony of Mother, 5/8/23 , 8 pgs.

Impartial Hearing Officer

I	District Closing Statement
II	Parent Closing Statement

Footnotes

[1] The parent has not unilaterally placed the student in a private school for which reimbursement is sought. Accordingly, this matter is not subject to a Burlington/Carter analysis and only an NPS placement will be considered. The specified “alternative” which I conclude relates to a district placement was not specified in the amended hearing request however I conclude it is nevertheless appropriate for consideration. (Ex, A)