New York City Department of Education, Impartial Hearing Decision

Case Number: 593962 – NYC: 244156

FINDINGS OF FACT AND DECISION

Student’s Name: Redacted

School District: District # [REDACTED]

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 12/22/2022

Hearing Requested by: Parent

Date of Hearing: 3/23/2023

Date of written summations: 4/13/2023

Record Close Date: 4/24 /2023

Date of Decision: 4/26 /2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3.23.2023:

For the Student:

Redacted, Non-Attorney Special Education Advocate

Redacted, LLC, (hereinafter referred to as “Parent’s Representative”) Redacted (hereinafter referred to as “Parent’s Witness #1”) Redacted, Parent (hereinafter referred to as “Parent’s Witness #2”)

For the Department of Education (“DOE”): Redacted, Esq., Agency Attorney (hereinafter referred to as “District’s Representative”)

BACKGROUND AND PROCEDURAL HISTORY

The Parent filed a Due Process Complaint (“DPC”) on 12/22/22 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The due process complaint alleged that the DOE failed to provide the Student with a free appropriate public education (“FAPE”) for the 2022-2023 school year and sought a 1:1 health paraprofessional as relief. ^[1]

The undersigned Hearing Officer was appointed to preside over this case on 1/31/2023.

On 3/6/2023, I held a Pre-hearing Conference in this matter. The parties selected a hearing date of 3/23/2023. On 3/23/2023, a hearing was held in the above matter virtually via WebEx. Participating in the hearing on the merits were Petitioner’s representative and the District’s representative.

HEARING

At the hearing, the DOE did not submit any exhibits nor did it present any witnesses. It relied on Parent’s evidence to argue that FAPE was presented to the Student (Tr 5,15). ^[2]

The Parent offered Exhibits A-Q into evidence, with no objection from the DOE. The exhibits were admitted into evidence (Tr. 6-8).

The DOE made an opening statement asserting that the 12/20/22 IEP was procedurally and substantively appropriate, the Parent substituted her opinion of an appropriate educational placement for that of DOE professionals, and neither the facts, applicable law nor equities supported the requested relief (Tr. 8-12). The Parent asserted that the recommended program of an ICT class and the public-school placement was appropriate as was the additional supports recommended by the DOE in the most recent IEP.^[3] Parent asserts the sole deficiency in the IEP was the DOE’s failure to recommend a 1:1 health paraprofessional to address the Student’s ADHD (Tr. 12-14) ^[4].

The DOE elected to cross-examine the two witnesses presented by the Parent (Tr.12-17).

Both parties submitted written summations to this tribunal on 4/13/2023. 5

FINDINGS OF FACT AND DECISION

After a full review of the record generated at the hearing, I make the following findings of fact and determinations.

The Student is a [REDACTED]-year-old boy, currently in the 8th grade, with the disability classification of Autism. In addition to Autism Spectrum Disorder, the Student also was diagnosed with attention deficit hyperactivity disorder (ADHD), combined presentation and Specific Learning Disorder with Impairment in Reading Comprehension and Impairment in Written Expression. 6 In his 12/20/22 IEP, the Student was recommended to be placed in an Integrated Co-Teaching (“ICT”) classroom for all core subjects, along with Special Education Teacher Support Services (“SETSS”) (5X per week for one session) for both Math & ELA on a twelve-month basis.^[7] The IEP recommended that the Student receive occupational therapy (group of ^[5], 2 X week for 30 minutes), parent counseling & training ( I time per month for 60 minutes), and speech language therapy (group of 3, 1X week for 30 minutes and group of ^[6], 2X week for 30 minutes).^[8] The Parent is not challenging the substance of the program.

With respect to the school attended by the Student it is:

a specialized program with specific eligibility criteria to serve students with Autism. This program is supportive of students social and pragmatic needs with students who have academic skills on or above grade level standards. Additionally, students who meet criteria for this program are able to work independently with minimal support. The team expressed that the support of a 1:1 paraprofessional would not be reflective of this program and other programs should be explored if we are considering the support of a 1:1 paraprofessional, as well as additional academic supports. ^[9] At the 12/20/22 IEP meeting, the CSE recommended that instead of the ICT classroom, the Student attend a 12:1:1 special classroom so that he could receive more individualized attention outside of the large group setting.^[10] The Parent rejected this recommendation.^[11](Tr. 31-32). The DOE considered Parent’s request for a 1:1 health paraprofessional, rejected it, determining: “The team found the support of a 1:1 paraprofessional would not sufficiently address the concerns of the parent, and instead would hinder his independence and isolate him from his peers. Additionally, the team brought up concerns related to [the Student’s] attendance this year and how these absences interfere with his performance, understanding, participation and progress in the classroom.”^[12] The Student’s slow academic progress was noted, even with the additional supports provided to him. ^[13] The following was set forth in the IEP: • Intellectual functioning- updated results were not available as Parent did not consent to updated cognitive and academic testing. It appears the last testing was from 2019. ^[14] • For the 2022-2023 school year, as of the IEP meeting in December, the Student had 24 absences with an attendance rate of 60%.^[15] Absences interfered with Student’s performance. ^[16] • Student’s math and reading level was on the third grade. The Student was in the 8th grade. ^[17] • 2021-2022 Academic Recovery Services-the Parent declined the services for Occupational and Speech Therapy but accepted the services for small group instruction for math. ^[18] • Parent declined compensatory services. ^[19] During the early part of the 2022-2023 school year, the Student was provided with a 1:1 health and ambulation paraprofessional to “help him transition through the building” after undergoing foot surgery. ^[20] Witness #1, the Student’s pediatrician for approximately six years (Tr. 16) testified that the Student has a diagnosis of Autism, ADHD and anxiety. His administration of ADHD medication for the Student interfered with the Student’s “ability to learn at a level commensurate with his intellectual abilities. The Student was also sensitive to anxiety medicines. Absent medication Witness #1 stated that the only way to deal with the Student’s “zoning out” was a paraprofessional. The paraprofessional could redirect the Student as needed (Tr. 18). Witness #^[1] testified that the Student did not necessarily require a health paraprofessional (Tr. 19). Witness #

Burden

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 a 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. ^[21]

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").^[22] 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”).^[23] 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.^[24] 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.” ^[25]

A reviewing court may fairly expect the DOE to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.^[26] As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden at the hearing. Rather, the DOE Representative indicated on the record that DOE was not introducing any documents or presenting any witnesses. The District solely relief on the documents offered by the Parent to demonstrate that it provided the Student with FAPE. The documents were not accompanied by testimonial evidence and raised questions. There was no testimony to explain the CSE’s decisions and recommendations at the two IEP meetings conducted in 2022, let alone a “cogent and responsive” explanation.^[27] Argument alone by the District’s representative as to what the IEP means is not probative evidence.^[28] The IEP indicates that the Student is not on grade level and does not meet other criteria of the specialized school. Similarly, there were not updated cognitive and academic testing, apparently due to lack of parental consent. It cannot be assumed from the evidence entered into the record that the District’s program was appropriate.^[29] Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.

Requested Relief for a 1:1 Health Paraprofessional

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”^[30] “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”^[31] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” ^[32]

Parent’s request for a 1:1 health paraprofessional is denied as no showing has been made for the need for one, nor would the provision of a health paraprofessional be in accord with the required independent nature of the students in the selected public school. The Parent argues that a diagnosis of ADHD warrants the implementation of a health paraprofessional, as ADHD is a medical condition (Tr.13-14). However, although ADHD is a medical condition, in this situation it has not been shown that it requires monitoring by a health paraprofessional.

According to the DOE Standard Operating Procedures Manual (“SOPM”) https://infohub.nyced.org/docs/default-source/default-document-library/special... , a health paraprofessional “may be recommended when a student’s medical or functional status (e.g. severe orthopedic impairments; multiple sensory deficits; inability to perform self-care activities such as toileting, dressing; uncontrolled seizure disorders) prevent the student from school-based nurses, related service providers and programmatic paraprofessionals” (SPM at pg. 63). The SOPM lists four types of non-programmatic paraprofessionals and distinguishes their responsibilities accordingly: behavioral support, health, toileting, and orientation & mobility (SOPM pg. 63). Guidance promulgated by the DOE describes the many functions a health paraprofessional may perform, which include activities of daily living, monitoring for signs and symptoms of a medical condition, administering medication, and escort to the school nurse as needed (SOPM pg. 64)^[33] Neither classroom redirection nor assistance with schoolwork appear on that list.

DOE suggests that to the extent a non-programmatic paraprofessional is required to assist a student with ADHD, a behavior paraprofessional would be most appropriate.^[34] DOE then argues that the behaviors warranting a paraprofessional in the F.L. case are far more extensive than anything shown by the Student- the student was already in a 6:1+1 classroom – a substantially more restrictive environment than an ICT class. The student’s behaviors which warranted a behavior paraprofessional involved roaming, humming, tapping, and making non-functional vocalizations, none of which are present here with the Student.^[35] Witness #1 testified that the Student could use a paraprofessional to consistently redirect and prompt the student during the day (Tr.22-23) (stating that the Student’s paraprofessional would need to “gently redirected to task,” “consultation with the mom, and “be aware that the Student has a tendency to zone out”). Witness #1’s letter presented to the CSE was conclusory in nature, without an underlying supportive explanation. ^[36]

Although ADHD is a medical condition, the existence of a diagnosis alone is not sufficient to justify the implementation of a health paraprofessional. Both Witness #1 and Witness # 2 agree that the Student does not require help with feeding, walking safely, administration of medication, or balance (Tr. 20, 32-33 (Parent: “I am asking mainly for his medical diagnosis of ADHD, for making sure he’s on task.”) Parent did not seek any other type of paraprofessional (Tr.32), nor did she bring the DOE’s 12:1 recommendation to the attention of Witness # 1(Tr.19-20). As the Student apparently has healed from his prior surgery, the basis for a prior health paraprofessional being provided to the Student, Parent has failed to provide evidence to support the request for a full-time 1:1 health paraprofessional.

Equities

The record shows that the Parent refused to consent to updated cognitive and academic assessments and, in the past, did not accept compensatory services. The Student was absent from school for a significant portion of the school year. The Parent failed to place the Student in a smaller sized classroom. It appears that at several junctures the Parent was less than cooperative and reasonable in her interactions with the DOE.^[37] It appears that the Parent wanted the Student to remain in the specialized program although he no longer met the criteria for that special program. The DOE was compliant with the Parent’s wishes, rather than remaining firm on its recommendation of a 12:1:1 program for the Student. ^[38]

Generally, an award of prospective relief in the form of prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs.^[39] To afford the CSE an opportunity to fulfil its task, and in the interest of determining the educational program best suited for the Student for the 2023-2024 school year, Parent is directed to timely make the Student available for updated cognitive and academic testing so that the CSE has appropriate information to evaluate the Student and best determine his educational program for the 2023-2024 school year, giving due consideration to the Student’s medical diagnoses and conditions, including ambulation, Autism and ADHD.

The DOE is directed to make its recommendation on the updated evaluations, progress reports and other assessments and support, giving due consideration to the Parent’s concerns, but not substituting the DOE’s professional opinion for that of the Parent.

The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) The DOE did not provide the Student with FAPE for the 2022-2023 school year.

(2) Parent’s request to issue a determination that the Student is entitled to the services of a 1:1 health paraprofessional for the remainder of the 22-23 school year is not supported by the evidence in the record, and accordingly the request to modify the IEP to make such determination is denied.

(3) Parent is directed to timely make the Student available for updated cognitive and academic testing so that the CSE has appropriate information to evaluate the Student and best determine his educational program for the 2023-2024 school year, giving due consideration to the Student’s diagnoses and medical conditions, including ambulation, Autism and ADHD.

Dated: April 26, 2023

Michelle S. Babbitt

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.

DISTRICT EVIDENCE

None

PARENT EVIDENCE

A. Due Process Complaint 12.21.22 3 pages

B. Parent Affidavit 3.15.23 6 pages

C. Neuropsychological Evaluation 1.19.19 11 pages

D. Individualized Education Program 11.12.20 35 pages

E. IEP Data Sheet 10.21.22 4 pages

F. Email Correspondence 10.24,25,27.22 2 pages

G. Letter from Developmental Pediatrician 10.26.22 1 page

H. Email Correspondence 10.28.22 2 pages

I. Individualized Education Program 10.24.22 24 pages

J. Prior Written Notice 10.27.22 3 pages

K. Classroom Observation 12.15.22 2 pages

L. Individualized Education Program 12.20.22 27 pages

M. Prior Written Notice 1.11.23 3 pages

N. Promotion in Doubt Letter 2.8.23 1 page

O. Student’s Progress Report 3.13.23 1 page

P. Redacted Diagnostic Assessment 3.14.23 7 pages

Q. Redacted Growth Family Report 3.14.23 1 page

IHO EXHIBITS

1. DOE’s Closing Brief 4.13.23 10 pages IHO

2. Parent’s Written Summation APPENDIX Information Term Used In FOFD Redacted Student Redacted Parent Representative Redacted District Attorney/Representative Redacted Witness # 1 Redacted, Parent Witness # 2 4.13.23 12 pages IHO

Footnotes

[1] Parent’s Exhibit A and IHO Exhibit 1-1.

[2] Tr. refers to transcript from the 3.23.23 hearing.

[3] Parent did not seek to admit any evidence describing the public-school placement.

[4] IHO Exhibit 2.

[5] IHO Exhibits 1 and 2.

[6] Parent’s Exhibit C-4.

[7] Parent’s Exhibit L-15-17.

[8] Parent’s Exhibit L-15-16.

[9] Parent’s Exhibit M 2-3.

[10] Parent’s Exhibit L-26.

[11] Parent’s Exhibit L-26.

[12] Parent’s Exhibit L-26.

[13] Parent’s Exhibit L-26.

[14] Parent’s Exhibit L-2.

[15] Parent’s Exhibit L-1.

[16] Parent’s Exhibit L-26

[17] Parent’s Exhibit L-1.

[18] Parent’s Exhibit I-2.

[19] Parent’s Exhibit I-2; see also Parent’s Exhibit M-2.

[20] Parent’s Exhibit I-23.

[1] testified that the Student’s IQ is below average. He is hypersensitive to commotion around him (Tr. 20). Witness # 1 stated that the Student’s lack of attention may not be obvious because he doesn’t have physical signs such as jumping around; the Student just zones out and requires an individual to redirect and prompt him through the day (Tr. 22-23). Witness #2, the Parent, stated that the Student still requires help navigating around the school although he is doing okay because all his classes are on one floor (Tr. 25-26). The Student receives SETTS for math and ELA after school (Tr.28). He receives OT in school, to assist with his attention deficits (Tr. 29). Witness # 2 had asked for two reconvenes of the IEP, to address related services, a health paraprofessional and transportation (Tr. 30-31). At the reconvene of the IEP meeting in December 2022, the Parent rejected the District’s recommendation to place the Student in a 12:1:1 class (Tr. 31-32). The Parent testified that the Student does not take any medication so a health paraprofessional is not needed for that purpose. The Parent’s main request for a health paraprofessional is the Student’s ADHD, not his ambulation (Tr.32). Witness # 2 stated that sometimes she is not even aware that the Student has zoned out and is not paying attention; it is difficult to tell from looking at him (Tr. 38). Witness #2 stated that the Student needs “a lot of redirection and re-prompting” (Tr.37-38). Witness #2 did not know the difference between academic recovery services and compensatory services (Tr. 38). Considering the foregoing and as more fully discussed below, I find a) the DOE did not offer the Student a FAPE for the 2022-2023 school year, b) the Parent did not show that a 1:1 health paraprofessional was an appropriate component of the Student’s educational program, and notwithstanding the failure to show the Student required the requested relief, c) the equities do not support the Parent’s requested relief.

[21] NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

[22] 20 U.S.C. § 1400 (d)(1) (A)

[23] 34 C.F.R. § 300.13

[24] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[25] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

[26] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[27] Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).

[28] IHO Exhibit 2-4-7.

[29] R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 185-186 (2d Cir. 2012); see also, L.O. v. N.Y.C. Dep’t of Educ., 822 F.3d 95, 111 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate sufficient evaluative material was relied upon creating an IEP without testimony regarding such).

[30] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16.

[31] Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16.

[32] Doe v. East Lyme, 790 F.3d at 454.

[33] see also K.S. v. New York City Dep’t of Educ., 2012 WL 4017795, at *8 (S.D.N.Y. Aug. 8, 2012) (finding that a 1:1 health paraprofessional was necessary to address the student’s needs to “ambulate, attend, perform his [activities of daily living] and otherwise attend school safely”).

[34] In F.L. ex rel F.L. v. New York City Dep’t of Educ, 553 Fed Appx 2, 8 (2d Cir. 2014), the court held that where a student’s “primary impediments to learning relate to problems with attention; his need for prompting; and his extensive interfering behaviors,” the record supported the SRO’s conclusion that a full time 1:1 behavioral management paraprofessional was appropriate.

[35] Id.

[36] Parent’s Exhibit G.

[37] Parent’s Exhibits I-2 and L-2.

[38] Parent’s Exhibit L-26.

[39] See Application of the Bd. of Ed, Appeal No. 22-176 at page 18; See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); see also Student X, 2008 WL 4890440 at*16 (noting “that services found to be appropriate for the student during one school year are not necessarily appropriate for the student during a subsequent school year”).