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Case Number: 596997 – NYC: 246405
FINDINGS OF FACT AND DECISION
Case Number: 246405
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Rep. District REDACTED
CSE REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 3/3/2023
Hearing Requested by: Parent
Date of Hearing: 4/25/2023
Record Close Date: 4/25/2023
Date of Decision: 4/26/2023
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
1. REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”) — Student
(“DOE”): — DOE
1. No appearance on behalf of the DOE, (hereinafter referred to as “District’s — DOE
Representative”) — DOE
Identifying Information Term Used In FOFD and/or Exhibit List — DOE
REDACTED — Parents
BCBA REDACTED
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND
DECISION
against Case # 246405
THE NEW YORK CITY Dr. Oren Varnai, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor
has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/3/2023,
Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2020-2021;2021-2022;2022-2023;2023-2024 school year(s).
During the school year in which Parent filed the DPC, Student was classified with
Autism.
The Due Process Hearing (“DPH”) took place on4/25/2023. DOE did not appear despite attempts to contact the CSE representative, and the DPH continued without DOE.
During the hearing, Parent’s Attorney withdrew, without prejudice, the claims for 2020-2021, 2021-2022, and 2023-2024 school years. The only issue remaining to be decided was whether the DOE deprived the Student of a FAPE for the 2022-2023 school year, the request for IEEs, and prospective services Parent alleged were required to be provided to Student.
Based on DOE’s absence and failure to defend its burden, all of Parent’s allegations in the DPC for the 2022-2023 school year are deemed as true.
III. Findings of Fact and Decision
A. FAPE
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed (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.[1] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.[2] Here, the Parents are not seeking the remedy of tuition reimbursement.[3] Thus, the DOE has the burden of proof on all issues in dispute.
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, [4]
establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum,[5] and provides for the use of appropriate special education services. 6A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE 6 See 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[7] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[8] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." [9]
Although school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[10] the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[11] Under the IDEA, if procedural violations are alleged, an IHO 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 the 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. [12]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[18] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[19]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[20] and designed to be provided in the least restrictive environment (“LRE”).[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[22] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum 23 through the use of appropriate special education services.[24]
Although not every student can be expected to attend a regular education curriculum, the
23 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[25]
B. 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 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 DOE failed to meet its burden by its absence at the DPH. There is no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE’s absence at the DPH amounts to a declination to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.
Endrew F., 137 S.Ct. at 1002. Therefore, I find that the DOE failed to offer the Student FAPE for the 2022-2023 school year.
C. The DOE Denied Student of a FAPE for the 2022-2023, 12-month School Year
Based on the foregoing, the DOE failed at meeting its burden at the DPH, and denied Student with a FAPE for the 2022-2023, 12-month, school year. Therefore, Parent’s allegations in the DPC are deemed true, and the relief sought shall be granted herein.
The DOE’s failure to defend its case at hearing results in an inequity that requires the undersigned to reach a determination on the merits vis-à-vis the ongoing harm that Parent’s allegations have been determined to be true. An order of interim IEEs, which was explicitly rejected by Parent’s Attorney at the PHC, would have prolonged the hearing process while depriving Student of the supports he needs to make meaningful progress in his education.
Although Parent withdrew, without prejudice, all other school years in the DPC, any future claim for compensatory education and/or services for the 2022-2023, 12-month, school year, are explicitly preserved, up to the date of this Order. The IEEs have been ordered as final relief to allow for Parent to obtain the necessary evaluations to ascertain the harm caused by the denial of FAPE for the 2022-2023, 12-month, school year, and the issue of such compensatory award for this school year may be addressed at a subsequent proceeding.
Finally, during the PHC, Parent explicitly addressed the issue of future litigation at the lowest administrative level for purposes of calculating compensatory education/service hours after obtaining IEEs as a final order. DOE’s absence at the PHC does not absolve them of the mandates of the PHC Summary and Order, which allows either party to object to any provision therein. Therefore, DOE’s failure to object to future litigation within the prescribed
10-day period for an objection, amounts to a waiver, and concession, that Parent will not be barred from litigating the limited issue of compensatory education/services for the 2022- 2023, 12-month, school year.
D. Prospective Placement
Parent requested in her DPC 26 for IHO to direct the CSE to:
“…hold an IEP meeting within fourteen days of the date of decision and recommend the Student for placement in a New York State-approved nonpublic school, with an appropriate educational program and related services in accordance with the Student’s needs. Alternatively, if an appropriate private school is located by the Parent prior to the substantive hearing, the IHO shall order the District to fund the cost of the Student’s attendance in such program upon a showing of appropriateness to remedy the denial of FAPE.”
Despite DOE’s absence at the DPH, such an order would not be appropriate, or permissible. “[A]n award of prospective relief in the form of IEP amendments and the 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.” [27]
Therefore, the Order will direct the CSE to convene within 14 days of the date of this Order, as well as 14 days following receipt of the IEEs ordered below, for the CSE to consider Student’s needs at several milestones. If, upon a new placement recommendation, the Parent
26 Ex. P-A-6.
disagrees with the program, she may file a new DPC challenging the appropriateness of that
IEP.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that DOE fund a neuropsychological evaluation to be conducted by a New York State licensed psychologist, with a provider of Parent’s choosing, at a rate not to exceed $6,000;
2. ORDERED that DOE fund a speech-language evaluation to be conducted by a New York State licensed speech pathologist, with a provider of Parent’s choosing, at a rate not to exceed 2,500;
3. ORDERED that DOE fund an assistive technology evaluation to be conducted by a New York State licensed speech pathologist, with a provider of Parent’s choosing, at a rate not to exceed $3,000;
4. ORDERED that DOE fund an occupational therapy evaluation to be conducted by a New York State licensed occupational therapist, with a provider of Parent’s choosing, at a rate not to exceed $2,500;
5. ORDERED that DOE fund a physical therapy evaluation to be conducted by a New York State licensed physical therapist, with a provider of Parent’s choosing, at a rate not to exceed $2,500;
6. ORDERED that DOE fund an ABA Skills Assessment to be completed by a New York State Licensed Behavior Analyst of Board-Certified Behavior Analyst, with a provider of Parent’s choosing, at a rate not to exceed $4,950;
7. ORDERED that DOE fund a Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) to be completed by a New York State Licensed Behavior Analyst or Board-Certified Behavior Analyst, with a provider of Parent’s choosing, at a rate not to exceed $4,125 for the FBA and $1,375 for the BIP;
8. ORDERED that DOE fund 2 hours per week of ABA supervision, and 2 hours per week of Parent Counseling and training, with an appropriately credentialed provider of Parent’s choosing, at reasonable market rate;
9. ORDERED that, until such a time as the District locates an appropriate placement for Student, DOE shall fund 40 hours per week of push-in ABA by an independent provider of the Parent’s choosing, at reasonable market rate;
10. ORDERED that DOE shall fund 20 hours per week of home-based ABA by an independent provider of the Parent’s choosing, at reasonable market rate;
11. ORDERED that DOE fund the cost of an appropriate assistive technology device for
Student;
12. ORDERED that the CSE shall convene an IEP meeting within 14 days of the date of this Order to consider placing Student in a New York State approved nonpublic school, or referral to the Central Based Support Team (“CBST”), with an appropriate educational program and related service in accordance with Student’s needs;
13. ORDERED that the CSE shall convene an IEP meeting within 14 days of receipt of the completed IEEs granted in this order to reconsider Student’s needs and placement;
DATED: SO ORDERED
April 26, 2025
Dr. Oren Varnai, Esq., IHO
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 proceedings 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
PARENT EXHIBITS
Exhibit Document Date Pages
A. Parent’s Impartial Hearing Request 03/03/23 6
B. Individualized Education Program 03/13/21 25
C. Individualized Education Program 11/29/21 25
D. Individualized Education Program 11/01/22 29
E. Behavior Intervention Plan Review Meeting 11/01/22 3
F. Independent SETSS-ABA Assessment 01/21/23 8
G. Affidavit of the Parent 04/21/23 3
H. Affidavit of the BCBA 4/18/23 4
DOE’S EXHIBITS
Exhibit Document Date Pages
1. None None None
IHO’S EXHIBITS
Exhibit Document Date Pages
I. None None None
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Ex. P-A.
[4] See 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[5] See 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii].
[7] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005])
[8] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[10] R.E., 694 F.3d at 190-91.
[11] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[12] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[13] 20 U.S.C. § 1415[f][3][E][i].
[14] Rowley, 458 U.S. at 203.
[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[16] Endrew F., 137 S. Ct. at 1001.
[17] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[21] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[22] 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i].
[24] 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v].
[25] Endrew F., 137 S. Ct. at 1000.