New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 242637

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parent

Dates of Hearing: December 14, 2022

January 3, 2023

January 20, 2023

February 2, 2023

Actual Record Close Date: February 2, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 14, 2022

REDACTED Parent Attorney

REDACTED DOE Representative, CSE 7

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 3, 2023

REDACTED Parent Attorney

REDACTED Parent/Mother

REDACTED Russian Interpreter

REDACTED DOE Representative, CSE 7

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 20, 2023

REDACTED Parent Attorney

REDACTED Parent/Mother

REDACTED Russian Interpreter

REDACTED Special Education Teacher

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 2, 2023

REDACTED Parent Attorney

REDACTED Parent/Mother

REDACTED DOE Consultant Representative

INTRODUCTION

On December 9, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of REDACTED (REDACTED) for the 2022/23 school year. The Parents requested the hearing by filing an impartial hearing request with DOE on or about November 21, 2022. The DPC is carried under New York City (“NYC”) The impartial hearing was held on December 14, 2022, January 3, 2023, January 20, 2023 and February 2, 2023 to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on February 2, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITION OF THE PARTIES

REDACTED is a REDACTED-year-old bilingual (Russian) student diagnosed with Autism Spectrum Disorder (ASD) and identified by the Committee on Special Education (CSE) as a “Preschool Student with a Disability” (Exhibit J). REDACTED was evaluated by DOE contracted evaluators from REDACTED to determine his initial eligibility for special education and related services in preschool (Exhibits C-I). REDACTED, who administered the psychological and educational evaluations noted that the student presents with significant delays in all areas of his academic readiness skills (Exhibits C-I). REDACTED thus has thus been receiving Early Intervention (EI) services through the NYC Department of Health from June 8, 2021 to December 31, 2022 (T @ 25, 37). According to the Individualized Family Service Plan (“IFSP”), REDACTED was recommended to receive twenty (20) hours per week of individual (1:1) special instructions provided by an ABA trained teacher and related services of Speech Language Therapy (3x30 1:1) and Occupational Therapy (2x30 1:1) (Exhibits B, F, K and L and T @ 37). On October 19, 2022, the CPSE convened to determine the student’s eligibility for services and provide him with an appropriate IEP for the remainder of the 2022/23 school year. The IEP team recommended a 10-month program consisting of five (5) hours per week of bilingual (Russian) Special Education Itinerant Teacher (“SEIT”) instruction and related services of Speech Language Therapy (2x30 1:1 and 1x30 2:1 -Russian); and Occupational Therapy (2x30 1:1) (Exhibit J). The parent maintained the recommended program to be deficient in order to provide the student with a FAPE based on procedural and substantive reasons and alleged: (1). the IEP team was not duly constituted; (2). the outcome of the CPSE review meeting was impermissibly predetermined because the CPSE administrator informed the parent that he was not able to recommend a higher frequency of the SEIT services; (3). given the student’s current EI program, the CPSE’s decision to recommend only 5 hours per week of SEIT was irrational and not supported by the substantive evidence presented at the review; (4). the IEP did not include adequate supports to address the student’s attentional needs or achieve the recommended annual goals in his preschool program; (5). the information listed in the IEP’s present levels of performance section did not adequately describe the student’s strengths and weaknesses or the results of updated evaluative data; (6). the management needs section did not address all of the student’s needs and is insufficient to adequately support him in the preschool program; and (7). the IEP was inappropriate as it did not recommend sufficient frequency of the 1:1 SEIT service on a twelve-month basis. Parent filed a DPC seeking: (1). CPSE IEP dated October 19, 2022 be deemed procedurally and substantively deficient to provide the student with a FAPE for the 2022/23 school year; (2). the student requires a twelve-month program consisting of no less than twenty (20) hours per week of 1:1 SEIT instructions using the ABA methodology to receive FAPE for the remainder of the 2022/23 school year. It is noted that at the hearing Parent’s counsel noted that due to a typo, the DPC incorrectly stated 15 hours of SEIT services and wished to have same corrected on the record to reflect the 20 hours as per Exhibit B. The DOE representative did not raise any objections to the correction (T @ 26, 30, 37); (3). the student also requires related services of Speech Language Therapy (3x30 1:1) and Occupational Therapy (2x30 1:1) on a twelve-month basis to receive FAPE for the 2022/23 school year; and (4) the student requires at least 1 hour per week of ABA supervisory services and 1 hour of PCAT provided by a bilingual BCBA or an LBA at a market rate on a twelve-month basis. At the hearing, parent waived all requested relief other than the requested 20 hours per week of 1:1 ABA/SEIT services -bilingual Russian on a 12-month basis, along with related services of Speech Language Therapy (3x30 1:1) and Occupational Therapy (2x30 1:1) (T @ 27).

At the hearing, the DOE did not submit any documentary evidence or witness testimony, failed to make an opening statement, merely conceding a FAPE denial and reserving the right to challenge the appropriateness of the services requested (T @ 22, 24).

The Parent submitted twelve (12) pieces of evidence (Exhibits A-L) in an effort to support their claim which were admitted into the record without objection from the DOE. Exhibit L was presented as the direct witness testimony of REDACTED, Special Education Teacher.

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (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. sect. 1400 (d) (1) (A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007].

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)). The case at hand is not a tuition reimbursement, thus the DOE bears the burden of proof on all issues.

It is noted that this is not a Burlington/Carter Case. The parent is seeking that I issue an Order providing:

20 hours of bilingual Russian 1:1 ABA/SEIT services on a 12-month basis, along with related services of Speech Language Therapy (3x30 1:1) and Occupational Therapy (2x30 1:1).

That having been noted, where the DOE has denied the student a FAPE and the parent seeks an order that the DOE provide different services, the SRO has held that the parent has no burden to prove that the services she seeks are appropriate. See Application of a Student with a Disability, Appeal No. 11-053 supra. Instead, the hearing officer should determine a remedy “based upon evidence presented in the hearing record.” (Id. @ 4). It is well established that the DOE bears the burden of proof. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Herein, the DOE opted not to submit documentary evidence, did not provide any witnesses to rationalize its recommended program and/or placement for REDACTED and merely rested. The DOE opted not to cross-examine the parent but did cross-examination parent witness, REDACTED. However, said cross-examination did not generate a material challenge to parent assertions. In essence, the DOE failed to meet its burden of production and persuasion in establishing that the October 19, 2022CPSE IEP was procedurally and substantively appropriate and reasonable calculated to address REDACTED's special education needs and failed to meet its the affirmative obligation of establishing the appropriateness of its recommended placement for the 2022/23 school year.

Contrarily, the evidence and testimony presented by the parent supports that Parent’s requested relief is an appropriate placement for REDACTED during the 2022/23 school year (Exhibits C-I, K and L). As referenced in Parent closing brief (Exhibit IHO-1), the record demonstrates that the student presents with significant delays across all domains as a result of his diagnosis of ASD. His vocabulary is limited to approximately 20 words (Exhibit C). In preschool, he is inattentive, impulsive, and struggles to pay attention (Exhibit D). The DOE’s own assessment concluded that he was functioning at the level of a 12- to-24-month-old, and had a greater than 25% cognitive delay (Exhibit D). The student’s current ABA providers, who provide 20 hours per week of ABA/SEIT support, describe his inability to sit and attend for more than two minutes and his tantrums when asked to transition or try something challenging (Exhibits K and L). Both providers reported that the student needs 1:1 support to participate in classroom activities and to interact appropriately with his classmates. (Exhibit K, T @ 34-35). With this level of 1:1 support, the student has made progress in these domains (T @ 35) and needs this level of support to continue to avoid regression. (Exhibit L). His ABA provider credibly testified that the student needs this level of support during a 12-month program to avoid any regression (Exhibits K-L, T @ 33-34).

While the DOE challenged the parent’s requested relief, it offered no cogent explanation for its recommendation or to support its challenge to the appropriateness of the requested services sought by parent. 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.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id. Herein, there are no inconsistencies in the record.

Parent alleges REDACTED is a child who requires a 12-month school year to avoid regression. The Parent contends the evidence supports that REDACTED is a child who regresses significantly when not given a continuous program. Both the SEIT provider and the Parent credibly attested that REDACTED is a child with severe regression in need of 12-months of services (Exhibits K and L, T @ 33-35).

Upon due consideration, I find the records corroborates that the student continues to require 20 hours of 1:1 ABA/SEIT services during a 12-month school year to be available for learning, and to make academic, social, and emotional progress in his general education preschool program during the 2022/23 school year (Exhibits C-I, K and L).

Lastly, there is nothing in the record to indicate that the Parent was anything other than cooperative with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the REDACTED for the school year at hand. Specifically, Parent worked in good faith with the DOE, participated in the IEP meeting and expressed concerns with the DOE's recommendations (T @ 37-39).

Based upon the foregoing, I find the DOE failed to offer the Student a FAPE for the 2022/23 school year.

IT IS HEREBY ORDERED:

The DOE shall provide the student with 20 hours of bilingual Russian 1:1 ABA/SEIT services per week for entirety of the 12-month 2022/23 school year, along with related services of Speech Language Therapy (3x30 1:1 -Russian) and Occupational Therapy (2x30 1:1).

Dated: February 4, 2023

Maria R. Dispenza

_________________________

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 20, 2023

Parent:

A. Impartial Hearing Request, 11/21/2022 - 5pp

B. NYS Early Intervention Program Individualized Family Service Plan, 06/08/21 - 4pp

C. Bilingual Social History, 08/31/22 - 3pp

D. Bilingual Psychological Evaluation, 08/31/22 - 9pp

E. Bilingual Educational Evaluation, 08/31/22 - 5pp

F. Classroom Observation, 08/31/22 - 3pp

G. CPSE Speech and Language Evaluation, 09/02/22 – 5pp

H. Occupational Therapy Evaluation, 09/16/22 – 4pp

I. Preschool Student Evaluation Summary Report, 09/16/22 -3pp

J. IEP, 10/19/22 -16pp

K. Recommendation Letters from SEIT Providers, 12/11/22 -3pp

L. Affidavit of REDACTED., 01/11/23 -5pp