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CASE NUMBER: 597769 NYC: 246986
BACKGROUND
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about March 27, 2023. In the DPC, the Parent alleges that the New York City Department of Education (DOE) failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year.
The Parent alleges as follows. In April 2022, the Committee on Special Education (CSE) met to develop a new individualized education program (IEP) for the Student, who has autism, and recommended placement at a New York State (NYS) approved non-public school due to the Student’s lack of academic and social-emotional progress. In July 2022 the Student enrolled at the NPS in a 6:1:1 classroom. In August 2022, the Student’s IEP was amended to modify the class ratio to 8:1:2. The August 2022 IEP included mandates for physical therapy (PT), speech and language therapy (S/L), occupational therapy (OT), parent counseling and training, assistive technology (AT), and a long list of specific accommodations and modifications. In addition, the Student had a behavior intervention plan (BIP) that was developed in November 2021, as well as mandates for a full-time 1:1 behavior support paraprofessional (class para) and a transportation paraprofessional (bus para). The Student only attended a few days of the NPS summer session because neither para service was consistently available. He then missed the first two weeks of school in September because transportation was not yet in place. These specific problems continued through the fall, and the Student stayed home on days when no bus or class para was available as it was not safe for him to be without this level of supervision. On days the Student attended school, he exhibited “aggressive” behaviors like hitting himself or others, kicking staff, banging on the tables with his hands or his head, and eloping, particularly when asked to engage in non-preferred tasks. The Student had better control in a 1:1 setting. These concerns were addressed in the November 2021 BIP. In December 2022, the Parent requested a reevaluation to obtain an updated functional behavior assessment (FBA) and a new BIP.
By the end of January 2023, the Student had missed a great deal of school due to the unavailability of bus and class paras. In February 2023, the Parent decided to keep the Student home until the staffing issues were resolved. The NPS sent work packets home, and the Student also worked with online learning programs. The NPS staff claimed they were unable to conduct an FBA because of the Student’s absences. Nonetheless, the CSE convened an IEP meeting on March 6, 2023 and told the Parent that there was no new information on securing a bus para and suggested removing the service from the IEP. The Parent did not accept this suggestion, as the Student’s difficulty remaining seated and calm on the bus still required a high level of supervision. After the IEP meeting the Parent, via counsel, asked the CSE and the NPS for authorization to conduct an FBA at home. The school responded it could not do an evaluation outside of the NPS. The CSE simply failed to respond. To date, the Student remains at home as he is unable to travel to school without a bus para. The Parent seeks an order directing the DOE to authorize an independent, in-home FBA and BIP conducted by a qualified clinician of the Parent’s choosing at a cost not to exceed $2,500; an award of compensatory education in the form of home-based applied behavior analysis (ABA) at the duration and frequency of sessions recommended in the updated FBA, at a provider rate not to exceed $200 per hour, as well as supervision hours at the same rate; and an order directing the CSE to convene an IEP meeting to incorporate the results of the FBA and BIP, followed by transmission to the Central Based Support Team (CBST) in order to secure placement in a different non-public school. (Ex. 1). 1
PROCEDURAL HISTORY
I was appointed on March 28, 2023. A prehearing conference was held on April 28, 2023. A status conference was held on May 11, 2023. At that time both parties moved for an extension of the compliance period, which I granted. (IHO Ex. I). On June 14, 2023, both parties appeared for the hearing. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. II). Both representatives made opening statements. The DOE submitted 23 exhibits in the record on consent of the Parent. The DOE did not call any witnesses and rested its case. The Parent submitted four exhibits into the record on consent of the DOE. Included in Parent’s evidence were two direct testimony affidavits from the Forensic Social Worker (Ex. C) and the Parent (Ex. D). The DOE Representative waived cross-examination of the Parent’s witnesses. Both representatives deemed their opening statements to be their closings. (See June 14, 2023 Transcript).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The Parent testified credibly as follows. The Student is ten years old and was diagnosed with autism when he was very young. He attended public schools through the 4th grade. In the 2021-2022 school year during 4th grade, the Student had a lot of trouble staying focused and participating in class activities. He would get frustrated and do things like bang on the furniture, throw things across the room, hit himself and others near him, and refuse to do whatever activity he was asked to do. The Student is very active at school but does better with 1:1 attention. (Parent Aff. at ¶¶ 1-2). The Student was not making progress in the 4th grade so in February 2022 the Parent asked for a reevaluation. After it was completed the IEP team agreed that the Student’s program wasn’t meeting his needs and they recommended placement in a NYS approved non-public school. The Parent reviewed the IEP dated June 22, 2022 (Ex. 4) and can confirm that it correctly describes how the Student was functioning in school. (Parent Aff. at ¶ 3). The Student started attending the NPS in July 2022 for 5th grade. He was supposed to have 1:1 classroom and transportation paraprofessionals because he is very active and there is always a risk that he will run away. Almost right away there were problems with both of these services. The NPS couldn’t tell the Parent why, but she called the staffing company and was told there were “staffing issues.” The Student only attended the summer session seven to eight days total.
(Id. at ¶ 4). When the September 2022 session started, the Student missed the first five days because there was no bus route assigned. Once he got routed, there were many days when there was no bus para available. By the end of December 2022, the Student missed 18 days of school for these reasons. (Id. at ¶ 5). The same person would act as the bus para and the class para, and there were about six different paraprofessionals between September and December 2022, including substitutes. On the days when no one was available, the Student stayed home. (Id. at ¶
1 The request for an award of compensatory education was withdrawn without prejudice at the hearing, without objection by the DOE. (T p. 11 L 9 to p. 12 L 4). 6). These problems continued after the winter break. The Student missed so much school that by the end of January 2023 the Parent had no choice but to keep him home until a paraprofessional was consistently available, but that never happened. The Parent thought about registering for home schooling but decided not to since the school sent her worksheets for the Student to work on at home. (Id. at ¶ 7). On March 6, 2023, an IEP meeting was held for the Student. When the team talked about the paraprofessional problem, they asked the Parent if she would agree to take the bus para off the IEP, but she was unwilling to do that because without one the Student would not be safe on the bus. (Id. at ¶ 8). The Student had an FBA done when he was in the first grade. He also had a BIP. The Parent found out at the March 2023 IEP meeting that the NPS was using the same BIP that his former school had made, and they hadn’t updated it. At the meeting the Parent asked for a new FBA and BIP and signed the consent to get them done. The school said they would do the evaluations when the Student was back in school. (Id. at ¶ 9). The Parent’s attorney told her that after the March 2023 IEP meeting, she emailed the NPS and the DOE school psychologist who attended the meeting, asking if they could arrange for the FBA to be done at home. The Parent’s attorney told the Parent that the NPS wrote back saying they couldn’t do an FBA outside of school, and that the DOE never replied. (Id. at ¶ 10). On May 9, 2023, the NPS emailed the Parent about getting the Student to and from school in an Uber which the DOE would pay for, but the Parent would have to go with him. This is not an option because the Parent would still have to get back home in the morning and then to the school at dismissal time. The Parent lives in a different borough than the NPS and it would take her well over an hour on public transportation. (Id. at ¶ 11). The Student hasn’t been to school since January 26, 2023. He is doing ok at home as his behavior is better when it’s just him and the Parent, and he is making progress on his academic skills. Even so, the Parent wants him to go back to school so he can work on his social skills and get his services. (Id. at ¶ 12).
The Forensic Social Worker testified credibly as follows. She holds a master’s degree in social work and is a licensed master of social work. She is currently a doctoral candidate in social welfare and holds a certification to supervise social work student working on their degrees. She is currently a forensic social worker at a legal services organization and has worked in the field of social work for approximately 13 years. (Forensic Social Worker Aff. at ¶¶ 1-4). As a forensic social worker her duties include advocacy and support for parents navigating the DOE and other related systems. This ranges from obtaining initial evaluations for IEPs, re-evaluation requests, evaluation for increased services, advice on school placement, mediations, and navigating the process of applying and enrolling at schools. The Forensic Social Worker does not work with families in a clinical capacity, instead her work focuses on educational and legal advocacy. (Id. at ¶¶ 5-6). The Parent has been a client of the Forensic Social Worker since approximately March 2016, and they communicate regularly. When the Parent receives documents from the DOE, she contacts the Forensic Social Worker, who provides advice and guidance. The Forensic Social Worker worked with the Parent during the 2022-2023 school year. (Id. at ¶¶ 7-9). On March 6, 2023, the Forensic Social Worker attended an IEP meeting with the Parent. During the meeting the Parent raised her concern that the Student has not been able to attend school since approximately February 2023 due to a lack of transportation paraprofessional services. Prior to that date, the Student had regular absences due to the lack of bus and/or classroom paraprofessionals. His IEP mandates both 1:1 services. (Id. at ¶ 10; Ex. 3). At the IEP meeting, the DOE representative acknowledged that there had been staffing issues, including high turnover of paraprofessionals, that are beyond the Parent’s control. The DOE representative suggested removing the 1:1 bus para, but the Parent explained that the Student needs 1:1 support on the bus for safety reasons, including risk of elopement. (Id. at ¶ 11). The DOE representative stated that she would contact the Parent with any updates regarding the bus para but could not provide an estimated timeline for which a consistent 1:1 bus para will be provided. (Id. at ¶ 12).
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 20 U.S.C. § 1401(9). 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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. RE-1, 137 S.Ct. 988, 999 (2017).
The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. See 20 U.S.C. § 1401(26); 34 CFR 300.34(a), (c)(16). Similarly, New York State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Educ. Law §§ 4401(1) (emphasis added); 4402(4)(a); see also Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
The “language and spirit of the IDEA” supports providing transportation to students with a disability classification as a related service, and transportation is an integral part of the District’s obligation to provide a student with a FAPE. See Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 (9th Cir 1994); Ne. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992). If the DOE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense. See Transportation, 71 Fed. Reg. 46576 (Aug. 14, 2006); 8 NYCRR 200.1(ww).
Burden of Proof
The DOE had the burden of proof on all matters at this hearing.[2] It had both the burden of production and the burden of persuasion on each claim put forth by the Parent.[3] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[4] Further, 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.”[5] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.[6] Further, [U[nder State law as set forth above, the burden of proof has been placed 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. (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement. [7]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
IEE
An independent educational evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR § 200.1(z).
The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” 546 U.S. 49, 60-61 (2005).
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE (Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011)), nor can it deny an IEE at public expense based solely on financial cost (Letter of OSERS, 2002). A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation. 8 N.Y.C.R.R. § 200.5(g)(1)(iii).
When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs” (Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016)).
Analysis
While the DOE submitted documentary evidence, including the March 6, 2023 IEP (Ex. 3), it failed to present any witnesses to explain how the Student’s program, including the provision of transportation services, was reasonably calculated to enable the Student to receive any educational benefits or make progress in light of his circumstances. I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2022-2023 school year. Additionally, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2022-2023 school year. I credit the Parent’s testimony that for the 2022-2023 school year, the DOE failed to provide the bus para and class para mandated by the Student’s IEP on a consistent basis, and that as a result the Student missed substantial amounts of school based on the DOE’s failure to provide the transportation and support safety services necessary for him to obtain an educational benefit. (Parent Aff. at ¶¶ 4-7). I also credit the Parent’s testimony that the Student’s last FBA was conducted when he was in first grade in November 2018, that it was out of date, and that the DOE failed to perform an updated FBA and formulate a new BIP, further denying the Student a FAPE. (Id. at ¶ 9). I find that in response to the Parent’s request to the DOE at the March 6, 2023 IEP meeting that they arrange for an FBA to be performed at home, the DOE neither ensured that the home-based FBA was performed or initiated an impartial hearing to establish that such evaluation does not meet the school district criteria. Accordingly, I find that the Parent is entitled to have the necessary home-based FBA and BIP IEEs conducted at public expense by a qualified clinician of the Parent’s choosing. I further find that based on the habitual and pervasive failure to the DOE to provide the Student with the consistent transportation services required by his IEP, including required paraprofessional services, that once the new FBA and BIP are obtained, that the CSE convene an IEP meeting to incorporate the results of the FBA and BIP, following by transmission to the CBST in order to secure the Student a placement in a different non-public school.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The DOE shall immediately provide for and fund at the DOE’s expense an independent in-home FBA and BIP for the Student, which shall be conducted by an independent and duly qualified clinician selected by the Parent, who shall be paid at a reasonable market rate not to exceed $2,500.00; payment shall be made directly to the clinician selected by the Parent within thirty (30) days of the DOE’s receipt of an invoice for such services; and
2. The Parent shall provide the DOE with a copy of the independent in-home FBA and BIP within ten (10) days of the date(s) that the Parent receives the completed
FBA and BIP; and
3. Within ten (10) days of the Parent’s transmittal of the independent in-home FBA and BIP to the DOE, the CSE will convene an IEP meeting for the Student to incorporate the results of the FBA and BIP, followed by transmission to the CBST to secure a placement for the Student in a new non-public school.
SO ORDERED
Dated: July 24, 2023
_Philip Sturges_______
Philip P. Sturges
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.
Footnotes
[2] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[3] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[4] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
[5] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.
[6] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).