New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596571 - NYC: 246052

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: REDACTED (hereinafter “District”)

Impartial Hearing Officer: Natacha Thompson, Esq.

Date of Filing: 02/17/2023

Hearing Requested by: REDACTED (hereinafter “Parents”)

Date of Hearing: 04/18/2023

Record Close Date: 05/02/2023

Date of Decision: 05/02/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 4/18/2023

For the Student:

REDACTED (hereinafter “Parents’ Counsel”)

REDACTED (hereinafter “Parents”)

REDACTED (hereinafter “NPS School Psychologist”)

For the Department of Education:

REDACTED (hereinafter “DOE”)

INTRODUCTION

Student 1 is a REDACTED-year-old child who was classified in their current Individualized Education Service Program (“IESP”) as a Student with a Learning Disability (DOE 1-1) ^[2]. Student is described as presenting difficulties in areas including working independently in class, problemsolving in math, writing skills, nervousness when taking quizzes, and rushing through quizzes. At issue in this case is the decision at a May 25, 2022 meeting of the Committee on Special Education to declassify Student as of June 24, 2022, rendering her no longer entitled in the 2022-23 school year to special education and related services under the Individuals with Disabilities Education Act (“IDEA”). In response to the declassification, Parents unilaterally placed Student in a New York State Non-Public School (“NPS”) for the 2022-2023 school year. (Tr: 26).

Parents seek an award of tuition for Student’s attendance at the NPS for the 2022-2023 school year. (P-A). Parents further seeks transportation for Student to and from the NPS. (Id.).

DOE did not present an opening statement but did provide a brief closing statement. DOE presented no witnesses and rested its case on the documentary evidence that was entered into evidence without objection.

Parents submitted documents into evidence which were admitted into the hearing record over an objection by the DOE. (Tr: 16-17). Parents’ counsel presented a case that consisted of direct live testimony by the Parent and from the NPS school psychologist. (Tr: 18). Parents’ witness, NPS school psychologist, was cross-examined by DOE’s attorney. Parents’ counsel did deliver an opening and closing statement. (Tr: 19-22, 77-80).

For the reasons discussed more fully below, I find that the District properly declassified this Student and thereby provided Student with a free and appropriate public education (“FAPE”) for the 2022-23 school year. Since the District met its burden under prong^[1] of the Burlington Carter Test, I do not make any findings on Parents’ case-in-chief.

PROCEDURAL HISTORY

Parents filed this case through their attorney, REDACTED of The Law Offices of REDACTED, L.L.P., on February 17, 2023. Following the filing of the due process complaint (“DPC”), I was appointed on February 21, 2023 as Impartial Hearing Officer (“IHO”) to preside over the merits of this matter.

There was no resolution meeting held between the District and Parents during the resolution period. Additionally, the DOE did not file a response to the DPC. After the Resolution Period ended on March 19, 2023, a Pre-Hearing Conference (“PHC”) took place on March 20, 2023. A closed hearing was held on April 18, 2023. The initial compliance date was May 3, 2023. One extension was granted extending the compliance date to June 2, 2023. (Tr: 80-81).

JURISDICTION

A decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200. Executive Order 91 (December 27, 2021) and Executive Order 20 (June 24, 2022) confer jurisdiction over this matter upon State Certified Impartial Hearing Officers who are members of the Special Education Hearings Division of the Office of Administrative Trials and Hearings.

LEGAL FRAMEWORK

The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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 FAPE is further defined as “educational instruction that is 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.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a 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. § 1400(d)(1)(A)(B).

“Under the educational scheme of the IDEA … Parents of students with disabling conditions are guaranteed ‘both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate’” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008), quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S. Ct. 592, 598 (1988) Whether a student's condition adversely affects his or her educational performance such that the student needs special education within the meaning of the IDEA, is an issue that has been left for each state to resolve (J.D. v. Pawlett Sch. Dist., 224 F.3d 60, 66 [2d Cir. 2000]). Cases addressing this issue in New York appear to have followed a case-by-case approach (Corchado v. Bd. of Educ. Rochester City Sch. Dist., 86 F. Supp. 2d 168, 176 [W.D.N.Y. 2000] [holding that each child is different and the effect of each child’s particular impairment on his or her educational performance is different]; Muller v. E. Islip Union Free Sch. Dist., 145 F.3d 95, 103-04 [2d Cir. 1998] [upon de novo review of record, rejecting IHO and SRO rulings and finding that student qualified as having a serious emotional disturbance, not a mere conduct disorder]; N.C. v. Bedford Cent. Sch. Dist., 473 F. Supp. 2d 532, 543 [S.D.N.Y. 2007], aff’d 2008 WL 4874535 [2d Cir. Nov. 12, 2008] [finding that student did not suffer from an “inability to learn”]; see also roundup of New York decisions in Application of Bd Of Educ of Buffalo City Sch. Dist., Appeal No. 13-056 at 13).

The IDEA and State law make clear that “[w]here a school district has previously classified a student as one ‘with a disability,’ it must evaluate a student prior to declassifying” student, and “[c]onsistent with federal and state regulations, the CSE, consisting of a group of qualified professionals and the child’s Parent(s), must review existing evaluation data on the child, including information provided by the Parents, and current classroom-based assessments and observations from teachers and other related service providers” (J.R. and D.M.R. ex rel. J.R. v Board of Educ. for the Iroquois Cent. Sch. Dist., 2020 WL 10817806, at *12, 2020 U.S. Dist. LEXIS 221608 *, No. 18-CV-859(JLS), 120 LRP 36764 [W.D.N.Y. November 24, 2020], citing 20 U.S.C. § 1414[c][1][A]; 8 NYCRR §§ 200.4[b][5][i], 200.4[b][5][ii], 200.4[b][4], 200.4[c][3]) (emphasis supplied); see also 20 U.S.C. § 1414[c][5][A]). In conducting the evaluation, the school district must also (i) ensure the evaluation is comprehensive; (ii) consider a student’s initial or most recent evaluations; (iii) “use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information”; and (iv) assess the child in “all areas of suspected disability” (20 U.S.C. §§ 1414[b][2][A], [b][3][B]; see also 34 C.F.R. §§ 300.4, 300.305, 300.324; 8 NYCRR §§ 200.4[b], [f][1]).

An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified (34 CFR 300.304[c][6]; 8 NYCRR § 200.4[b][6][ix]; see Application of the Bd of Educ of Buffalo Sch. Dist, Appeal No. 13-056 at 12-13; Application of the Dep’t of Educ., Appeal No. 07-018). Once a school district determines a student no longer requires special education services and can be placed in a regular educational program, it may recommend appropriate declassification support services for the student. 8 NYCRR § 200.4[d][1][iii]. The purpose of declassification support services is “to aid in [the] student’s transition from special education to full-time regular education” 8 NYCRR § 200.1[ooo]. Furthermore, the school district is required to notify the child’s Parents of a declassification determination and the reasons underlying it, and also must inform Parents of their right to request an assessment. See 20 U.S.C. § 1414(c)(4)(A); 8 NYCRR §§ 200.4[b][5][iv]; 200.5[a][5][i].

The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student with a disability received a FAPE. 20 U.S.C. § 1415[f][3][E][i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR § 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; A.H. v. Dep’t of Educ., 394 Fed. Appx. 718 [2d Cir. 2010]; E.H. v. Bd. of Educ., 361 Fed. Appx. 156 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff’d,

293 Fed. Appx. 20 [2d Cir. 2008]).

FINDINGS OF FACT

Student was born premature and was diagnosed with fetal alcohol syndrome. (Tr: 57). Student was born in Russia and adopted by Parents and brought to the United States at 16 months old. (Id.). Student received Early Intervention services in preschool, and Parents were offered occupational therapy, but Parents declined the services. (P-C). During Student’s REDACTED grade school year, Parents were notified that Student was in jeopardy of not being promoted to the next grade. (Tr:59). Parents were concerned that being left back would affect Student’s self-esteem and anxiety. (Id.). Parents kept student in a general class and did not put Student in an integrated co-teaching (“ICT”) class for fear that Student would be impacted by the class environment. (Id.). According to Parents, in REDACTED or REDACTED grade Student was receiving services based on a 504 plan under Section 504 of the Rehabilitation Act. (Tr:60). After REDACTED grade, Student went to a smaller private school due to bullying, and because of Student being overwhelmed at a larger public school. (Id.).

On August 12, 2020, Student was evaluated in REDACTED grade based on a referral by Parents. (P-C). Parents wanted Student’s cognitive and academic abilities assessed. (Id.). Student received a psychoeducational evaluation which determined Student was within average range compared to same age peers in all testing areas except for Mathematics Composite which showed Student in the below average range. (C-4).

As a result, the CSE classified Student as a Student with a Learning Disability and created an IESP recommending a general education environment with part-time academic support. (D-1). Student’s special education program consisted of Special Education Teacher Support Services (“SETSS”) 5 times per week for one period in a separate location. (Id.). During the 2021-22 school year, these services were provided to Student at the private school program Student was attending. (Tr: 62). In preparation for Student’s transition from REDACTED grade to REDACTED, Parents requested a reevaluation of Student. (Tr:62-64). District agreed to Parents’ request to reevaluate Student and sent Parents a prior written notice (“PWN”) dated January 26, 2022. (D-2). A social history assessment, level I vocational interview, behavior assessment Parents report, and a behavior assessment Student self-report were all conducted as part of the reevaluation. (D-3, D-5, D-6 and D-7). The psychoeducational reevaluation was conducted on May 8, 2022 and incorporated the level I vocational assessment as well as the behavior assessments. (D-4).

On May 25, 2022, the Committee on Special Education (“CSE”) held an IEP meeting at which all the participants appeared by telephone. (D-8). Present at the meeting were Parents, REDACTED; a Special Education Teacher from the District, REDACTED; a CSE School Psychologist, REDACTED; a District Representative to the CSE, REDACTED; Student’s English Language Arts Homeroom Teacher, REDACTED; and Student’s personal physician, REDACTED. (Id.). The CSE’s IEP meeting minutes indicate that teacher’s progress reports, teacher’s academic goals, present levels of functioning, and goals were discussed. (D-9). The meeting minutes also noted Student is doing well in school and is passing in school. (Id.). During the meeting, Parents voiced concerns about challenges that Student had with social interactions with peers and stated Student does better with adult interactions. (Id.). Parents disagreed with the CSE’s determination to declassify Student and they stated “[Student] is at a point that she may spiral out of control in high school.” (Id.). After the meeting, “Parents corresponded with the CSE chairperson without success regarding a reconsideration of this determination.” (P-A).

Following the IEP meeting, in a PWN (Notice of Recommendation) dated June 8, 2022, the notice stated that “The Committee on Special Education [‘CSE’] proposes to declassify your child and cease providing special education services effective June 24, 2022.” (D-10). The PWN explained that the psychoeducational assessment, social history assessment, and vocational assessment were reviewed and discussed during the May 25, 2022 IEP meeting and “it was determined that your child no longer meets the eligibility criteria for an educational disability.” (Id.). The PWN stated that Parents had “the right to address the Committee, either in person or in writing, on the appropriateness of the Committee’s recommendations” and provided a phone number to contact a representative from the DOE. (D-10).

At the due process hearing, DOE relied only on the documents it offered in evidence and did not call any witnesses. (Tr:45). When the DOE was asked by Parents’ Counsel for an explicit position on whether they would be defending its obligation to provide Student with a FAPE, DOE stated, “we’re just not putting on a prong one.” (Tr:19). When DOE was further asked by Parents’ Counsel to clarify on whether DOE intended on relying on its exhibits toward DOE’s prong 1 burden, DOE again responded, “we are not putting on a prong one.” (Id.).

During Parents case-in-chief, Parents^[3] testified that they never received the declassification notice, the PWN, nor the May 25, 2022 IEP meeting minutes. (Tr: 66-67). I credit Parents’ testimony that they did not receive these documents. (Tr: 66-68). I further credit Parents’ testimony that they were “shocked and disappointed” with the CSE’s determination to declassify Student. (Tr: 65). Parents testified at the hearing that Student’s teacher and physician were “disappointed and just as upset” as they were about the CSE’s decision to declassify. (Tr:66). I credit Parents’ testimony that this sentiment was also conveyed at the CSE meeting. (Id.).

Parents further testified that after not hearing back from the CSE, Parents enrolled Student at NPS for the 2022-2023 school year. (Tr:68). Parents believed the special education program offered at NPS would “work with [Student] based on [Student’s] individual needs and give [Student] individual learning which [Parents] saw immediately.” (Id.). Prior to attending NPS, Student participated in a buddy day at NPS where each teacher performs assessments, observes, and ask questions of Student. (Tr:69). According to Parents, the NPS also reviewed Student’s previous IEPs and “they felt [Student] would be a good fit, and that they could fulfill [Student’s] needs to help her grow.” (Id.)

Parents’ Counsel presented NPS School Psychologist to testify about the appropriateness of the unilateral placement. (Tr:44-56). I found this witness to be credible.

Parents sent District through their attorney, a ten-day notice (“TDN”) dated August 22, 2022. (P-B). Parents subsequently signed a tuition fee agreement with NPS on August 26, 2022. (P-D). Parents testified that they transport Student to NPS with their own vehicle at personal expense. (Tr:72).

ANALYSIS AND CONCLUSIONS

Based on DOE’s documentary evidence, which was offered and accepted into evidence, I find Student is ineligible for special education and related services.

Parents had a genuine concern about Student’s transition from junior high school to high school and felt Student required additional services than what was originally provided in Student’s IESP. (Tr:62-63). Parents’ request of a reevaluation of Student was agreed to by District, even though the last evaluation was conducted within a year of the request. (D-2). District conducted a battery of assessments including a social history assessment, a Level I vocational interview, behavior assessment parent report, behavior assessment student report, and a psychoeducational evaluation report. The general outcome of the various assessments was that Student was performing average as compared to her peers. (D-3, D-4, D-5, D-6, and D-7). As a result of these findings, a CSE meeting was convened on May 25, 2022 to discuss the evaluations and to consider input from the school and Parents. (D-9). During the CSE meeting, the CSE heard from Student’s English Language Arts homeroom teacher, special education teacher, physician, Parents, school psychologist, and a district representative. (Id.). Based on the meeting minutes, the participants discussed various aspects of Student’s academics, including current grades, present levels of functioning, teacher’s academic goals, recent testing or observation, and the recommendation to declassify Student. (Ibid.). Student’s teachers, school psychologist, physician, and Parents all provided input. The CSE at the May 25, 2022 meeting had sufficient information to identify Student’s needs and determine that Student was no longer eligible for special education services to access the general education curriculum to derive an educational benefit. The DOE has carried its burden through documentary evidence, of demonstrating by a preponderance of the evidence that it considered several factors prior to declassifying Student. These factors included Student’s May 8, 2022 psychoeducational evaluation, social history and behavior assessments, Level I vocational interview, as well as input from Student’s Parents, teachers, physician, and school psychologist, and then convening a properly constituted CSE meeting before making the decision to declassify Student. Under the regulations, this is appropriate information upon which to predicate Student’s declassification. See 8 NYCRR § 200.4(b)(4).

Once the CSE has made its determination that Student no longer has a disability qualifying Student for special education services, it must notify Parents of that determination and the reasons for the decision and must also notify Parents that they have a right to request an assessment. See 20 U.S.C. § 1414(c)(4)(A); 8 NYCRR § 200.4(b)(5)(iv). Parents can request that the District conduct the assessment, but the District is not otherwise required to do one. 8 NYCRR § 200.4(b)(5)(iv).

District provided documentary evidence of a PWN that was addressed to Parents informing Parents of their decision to declassify Student, including the basis for their decision. (D-10). Absent any testimonial evidence or certified documents to verify that the PWN was mailed to Parents, I find Parents’ testimony credible that they never received the PWN. (Tr: 66). This failure to notify Parents of the CSE’s determination is a procedural error, but it does not amount to a denial of FAPE given the fact that Parents were informed of the recommendation at the CSE meeting and had thereafter corresponded with the CSE chairperson to reconsider the determination. (P-B).

Where there is found to be a procedural violation, relief is warranted if the violation "impeded the child's right to a [FAPE]," "significantly impeded the parents' opportunity to participate in the [decision-making] process regarding the provision of [a FAPE]," or otherwise "caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); Lesesne ex rel. B.F. v. D.C., 447 F.3d 828, 834 (D.C. Cir. 2006) (citing cases for the proposition that "an IDEA claim is viable only if ... procedural violations affected the student's substantive rights"). The District’s failure to notify Parents of its determination to declassify Student did not impede Student’s right to a FAPE since Student was performing average in a general education learning environment with part-time academic support and would continue in a general education setting without this support. (D-1). Furthermore, Parents actively and meaningfully participated in the decision-making process based on their request to reevaluate Student, Parent’s participation at the May 25, 2022 CSE meeting, and their subsequent correspondence with the CSE chairperson to reconsider the determination. Lastly, the CSE had sufficient evaluative data and input from the appropriate persons who knew Student to make its determination that Student could make meaningful educational progress accessing the general education curriculum without special education services.

The IDEA requires that school districts provide "special education and related services" to all qualifying students with disabilities. 20 U.S.C. § 1400(d)(1)(A). The IDEA defines a "child with a disability" as a child: "(i) with intellectual disabilities..., other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services." 20 U.S.C. § 1401(3)(A) (emphasis omitted). Under the New York City Regulations, "special education" is defined as "specially designed individualized or group instruction or special services or programs," (8 NYCRR § 200.1(ww)), and "specially designed instruction" is defined as "adapting, as appropriate to the needs of an eligible student ... the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum so that he or she can meet the educational standards that apply to all students." 8 NYCRR § 200.1(vv). Upon review of the documentary and testimonial evidence, including the IESP, evaluative data from Parents and DOE, CSE meeting minutes, and Parents testimony, it appeared that Student was performing average in a general education setting with needs, including repetition and review, reminders to check work, teacher check-ins, verbal and non-verbal prompts, preferential seating, etc., that the CSE determined did not require special education services to confer a meaningful educational benefit. Doe, 832 F.3d at 85.

Therefore, I find that District’s procedural violation did not: (a) impede Student's right to a FAPE, (b) significantly impede Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, and (c) deprive Student of educational benefits during the 2022-2023 school year.

ORDER

For the foregoing reasons, it is therefore ORDERED AND ADJUDGED that:

1. DOE did provide a FAPE for the 2022-2023 school year;

SO ORDERED.

Dated: May 2, 2023 ______/s/ Natacha Thompson________

NATACHA THOMPSON, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the Parents 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

1. IESP 10/6/2021 8 pages DOE

2. PWN – Additional Reevaluation 1/26/2022 9 pages DOE

3. Social History Assessment 5/8/2022 3 pages DOE

4. Psychoeducational Evaluation Report 5/8/2022 6 pages DOE

5. Level I Vocational Interview 5/8/2022 2 pages DOE

6. Behavior Assessment Parent Report 5/11/2022 12 pages DOE

7. Behavior Assessment Self-Report 5/11/2022 10 pages DOE

8. Declassification from Special Ed 5/25/2022 2 pages DOE

9. IEP Conference Minutes 5/25/2022 3 pages DOE

10. Prior Notice Package for Placement 6/8/2022 9 pages DOE

PARENTS EVIDENCE

A. Request for Impartial Hearing 2/17/2023 3 pages

B. Notice of Unilateral Placement 8/22/2022 3 pages

C. Psychoeducational Evaluation Report 8/12/2020 8 pages

D. NPS Program Tuition Agreement 8/26/2022 2 pages

E. NPS High School Class Schedule 2022-2023 2 pages

F. NPS High School Report Card 2022-2023 2 pages

Footnotes

[1] No personal identifying information is contained within the body of this FOFD. For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.

[2] The Hearing Officer Exhibits will be cited to as “IHO – followed by a roman numeral”; “Parent’s Exhibits will be cited to as “P – followed by a letter”; and DOE Exhibits will be cited to as “D – followed by a number”. References to the hearing transcript will be cited to as “Tr – followed by a page number”.

[3] Both Parents were present at the due process hearing, but only Student’s mother provided testimony.