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Findings of Fact and Decision Case No.: 247070
CASE NUMBER 597882 - NYC 247070
FINDINGS OF FACT AND DECISION
Case Number: 247070
Student’s Name: [REDACTED] (Student)
School District: N.Y.C. Dept. of Ed., District # [REDACTED]; Service District # [REDACTED]
Impartial Hearing Officer: Kevin T. McGrath, Esq.
Date of Filing: 03/27/2023
Hearing Requested by: [REDACTED] (Parents)
Dates of Hearing: 06/22/2023
Record Close Date: July 10, 2023
Date of Decision: July 10, 2023
Names and Titles of Persons Who Appeared on June 22, 2023:
For the Department of Education (DOE):
[REDACTED], Consultant Hearing Representative
For the Student:
[REDACTED], Esq., Law Office of [REDACTED]
Dr. [REDACTED], M.D., witness
Findings of Fact and Decision
INTRODUCTION
This action involves claims that Student, who was [REDACTED] years old for the 2021-2022 school year and suffers from autism spectrum disorder (ASD), was denied a free appropriate public education (FAPE) due to the Student’s evaluation, placement, and education at Public School.[1] Parents allege the denial of FAPE continued into the 2022-2023 school year (when Student was four years old) because the NYC Department of Education (DOE) maintained Student at Public School where Student failed to make any meaningful progress in communication, self-care and other life skills. As a result of the denial of FAPE, Parents request not only compensatory education services but also prospective tuition funding at Private School for the 2023-2024 school year.
Parents, through counsel, filed a Due Process Complaint (DPC) on March 27, 2023.[2] In the DPC, Parents allege that the DOE failed to offer Student[3] a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years.[4] When the DPC was filed, the parties had not participated in the “turning 5” IEP[5] meeting to prepare for student’s admission into kindergarten for the 2023-2024 school year. As such, the DPC does not contain any specific allegation regarding the IEP for 2023-2024.
Parents seek an award of (a) compensatory education services, in the amount of 2,400 hours of applied behavior analysis (ABA) therapy, at Student’s home, in a one-to-one setting, and (b) for the prospective direct funding of tuition at a private program, not approved by the Commissioner of Education, for the education of students with disabilities, for the 2023-2024 school year. The DPC raises the claims that:
1. The CPSE impermissibly discriminated against an immigrant family, and the CPSE’s procedure to consider a child’s ethnic background violated the New York City Human Rights Law, N.Y. Admin Code 8-101, et seq. (City HRL), and the New York State Human Rights Law, Law 290, et seq. (State HRL);
2. The DOE deprived Student of their constitutional right to due process of law in violation of 42 U.S.C. 1983 (Section 1983);
3. The placement of Student in a school unable to teach them and the failure to accommodate Student’s disability violated Section 504 of the Rehabilitation Act of 1974, 29 U.S.C. § 794 (Section 504); and
4. That the DOE failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years when its Committee on Special Education (CSE) decided to:
(a) place Student in an inappropriate school;
(b) improperly reevaluated Student for a school placement for the 2022-2023 school year; and
(c) not properly involve the Parents in the creation of the IEPs.[6]
As detailed below, I hold: (1) the claims for relief pursuant to the City HRL, State HRL, Section 1983, and Section 504 are DENIED; (2) Student was provided with a FAPE for the 2021-2022 school year, so the request for compensatory education for that school year is DENIED; (3) Student was denied a FAPE for the 2022-2023 school year, so the Student is GRANTED compensatory education, as detailed below; and (4) the request for prospective funding for tuition at Private School, as an award of compensatory education relief, is DENIED.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer (IHO) on March 30, 2023. DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on April 27, 2023, and a Prehearing Conference Summary and Order was issued the same day.[7]
On May 9, 2023, Parent’s Representative submitted a “Motion to Bifurcate” requesting separate hearings for (a) the claims related to a compensatory services award connected to the 2021-2022 and 2022-2023 school years and (b) for claims related to the 2023-2024 school year.[8] A Status Conference was held on May 11, 2023, where the parties discussed Parents’ motion, the request for a subpoena, and the scheduling of a due process hearing. A Status Conference Summary and Order was issued the same day as the conference, which (a) denied the Parent’s motion to bifurcate, (b) requested Parents’ Representative submit a proposed subpoena clarifying what documents were requested,[9] (c) scheduled dates for the due process hearing, and (d) directed June 14, 2023[10] for disclosure of all documents and identification of witnesses.[11] Additionally, on the record, Parents’ Representative withdrew their request in the DPC for an award of compensatory speech-language services.
Thereafter, the parties exchanged multiple emails regarding the disclosure of documents and scheduling to accommodate witness availability. The DOE exchanged 30 documents on May 17, 2023 as part of their voluntary consent to the documents requested by Parents’ Representative. On June 14, 2023, Parents’ Representative timely served eight separate “declarations”[12] containing the testimony of their proposed witnesses.[13] On June 20, 2023, only two days before the due process hearing, Parents untimely submitted 19 documents (which included a resubmission of the eight prior “declarations”) and a “Prehearing Statement.”[14] As discussed below, the Prehearing Statement contained new facts, arguments, and claims for relief not raised in the DPC. Parents’ Representative was directed to resubmit their exhibit list and to remove all editorial comments they included regarding the document's significance. On June 21, 2023, one day before the due process hearing, Parents’ Representative served an additional “declaration” that they claim was unintentionally omitted from the previous day’s disclosure.[15]
A merits hearing was held before me on June 22, 2023. The hearing commenced with a session in the morning, continued with a second session in the afternoon, and concluded the same day with closing statements from the DOE Representative. Parents’ Representative was granted permission to serve a written closing statement, which was served on the parties on June 22, 2023.[16]
At the June 22, 2023 hearing, DOE Representative produced 30 exhibits, all admitted into the record, some over the objection of Parents’ Representative.[17] The DOE did not present any witnesses or testimony by affidavit at the hearing. Parents’ Representative presented 19 exhibits[18] that had been previously exchanged and sought to introduce two new tax filing documents.[19] All documents were admitted into the record, some over the objection of the DOE Representative.[20] Parents’ Representative produced Pediatrician, who provided live testimony on behalf of the Student, and testimony by an affidavit from Parent #1, Private School Representative, and witnesses #1-5.
DPC causes of relief, and the untimely Prehearing Statement causes of relief.
In summary, with regards to claims under the IDEA, the March 24, 2023 DPC states FAPE was denied because:
a) “the IDEA required the CPSE to reevaluate [Student][21]’s placement in 2022” and that “[Student’s] inability to learn and progress at the [Public School] made inadequate the 2022 IEP continuing[their] attendance at that school”.
b) “the CPSE did not involve parents in [Student’s] IEP” because “the CPSE used its administrative authority to intimidate the parents. The CPSE represented to parents that only one school was available for [Student]” and “the District effectively excluded Student’s parents from participation in the creation or formulation of their [child’s] appropriate education.”
c) “the omission to provide 1:1 ABA instruction denied [Student] an appropriate education” because the CPSE provided “no functional behavior analysis and no behavior intervention plan” and “the Department’s refusal to consider a 1:1 ratio placement classroom has denied [Student] a FAPE”[22]; and
d) “Pre-decided policies and procedures deny [Student] relief (sic)” because the department bars children from receiving an IEP that includes home-based 1:1 instruction.[23]
In the Prehearing Statement, served on June 20, 2023, Parents’ Representative raises the following facts and arguments for the first time:
a) “The District did not refer the student to an appropriate school, to an appropriate classroom, to appropriate teachers or to an appropriate teach methodology (sic)” because “no evaluation supported sending [them] to a school for the deaf.”
b) that “no evidence shows that [Public School] was appropriate for [Student]” because the class composition, type of disabilities of other students, methodology used, and the type of teacher’s training were undisclosed.
c) “At [Public School] [Student] did not achieve [their] goals.”
d) “The 2022 IEP was held without a parent present.”
e) That the IEP District Administrator repeated a hearsay statement and contradicted herself regarding student’s ability to communicate.
f) The IEP denies [Student] a teacher with special training for autism.
g) The IEP provides insufficient 1:1 instruction.[24]
Issues Presented by the Due Process Complaint
1) Was Student denied a FAPE during the creation of the 2021 IEP, from the IEP’s recommendations and the services provided at the placement location?
a. If a FAPE was denied, what type and amount of compensatory education should be awarded?
2) Was Student denied a FAPE during the creation of the 2022 IEP, from the IEP’s recommendations and the services provided at the placement location?
a. If a FAPE was denied, what type and amount of compensatory education should be awarded?
3) Is the Student entitled to an award for the prospective direct tuition funding at Private School for the 2023-2022 school year?
4) Can Parents raise claims in the action under a) the NY State and NY City Human Rights Laws, b) 42 USC §1983, and c) Section 504 of the Rehabilitation Act?
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Credibility and Relevance
Many of the affidavits contain a combination of relevant and inadmissible statements. As such, their contents will be addressed before discussing the other facts presented in the action. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt their concern for Student; therefore, I find all the witnesses credible, except in the areas noted below. The relative weight I afford them will likewise be reflected in the analysis.
Parent #1
In admitting the affidavit, I find it relevant to describe events and a layperson’s opinion of Student’s abilities.[25] I do not give any weight to the statements and opinions in paragraph 15 regarding the need for ABA services or the number of compensatory services needed because there was no showing of any training or expertise to offer the stated medical/educational opinions.
Pediatrician
As for the Pediatrician, in admitting the affidavit and their live testimony,[26] I find no reason to doubt the veracity of their statements or the earnestness of their relevant opinions and therefore find the witness and their testimony credible. Their training and experience were sufficiently established in the affidavit, and their curriculum vitae, to demonstrate Pediatrician qualifies to provide professional opinions regarding Student’s medical condition and educational needs. The relative weight I afford the witness’s opinions will be reflected in the analysis.
Private School Representative
As for the Private School Representative, in admitting the affidavit,[27] I found no reason to doubt the sincerity of their statements or the earnestness of their relevant opinions and therefore find the witness and their testimony credible. Their training and experience were sufficiently established in the affidavit to demonstrate that they qualify to provide professional opinions regarding the education methodologies for persons with ASD. The relative weight I afford the witness’s opinions will likewise be reflected in the analysis.
Witness #1
The witness is a family friend. In admitting the document, I find it relevant to describe events and a layperson’s opinion of Student’s abilities.[28] I do not give any weight to the statements or opinions in paragraphs 4, 5, and 6 because they contain unreliable hearsay[29] statements, lack any foundation to show the witness has personal knowledge of the facts contained therein, and there was no showing of any training or expertise to offer the stated medical/educational opinions.
Witness #2
The witness is a family friend who attended the 2023 IEP meeting. In admitting the affidavit,[30] I find it relevant to describe events and a layperson’s opinion of Student’s abilities. I do not give any weight to the statements or opinions in paragraphs 7-13 and 16-24 because they contain unreliable hearsay statements, lack any foundation to show the witness has personal knowledge of the facts contained therein, and there was no showing of any training or expertise to offer the stated medical/educational opinions.
Witness #3
The witness is a family friend. In admitting the affidavit,[31] I find it relevant to describe events and a layperson’s opinion of Student’s abilities. I do not give any weight to the statements or opinions in paragraphs 6 and 10 -18 because they contain unreliable hearsay statements, lack any foundation to show the witness has personal knowledge of the facts contained therein, and there was no showing of any training or expertise to offer the stated medical/educational opinions. Despite the attestation that Witness #2 works in a hospital, they do not provide any information on their training, length of experience, or any testing methodology used, so any medical and education-related opinions will not be given any weight.
Witness #4
The witness is a family friend who attended the 2023 IEP meeting. In admitting the affidavit,[32] I find it relevant to describe events and a layperson’s opinion of Student’s abilities. I do not give any weight to the statements in paragraphs 5-7 because they contain unreliable hearsay statements, lack any foundation to show the witness has personal knowledge of the facts contained therein, and there was no showing of any training or expertise to offer the stated medical/educational opinions. Despite the attestation that Witness #4 is a teacher who has taught “an autistic student,” they do not provide any information on their training, experience, or any testing criteria used, so any opinion on Student’s educational needs will not be given any weight.
Witness #5
The affidavit[33] was admitted into evidence upon DOE’s consent. However, after reviewing the document, I find it contains no relevant information or facts. The witness does not indicate they met the Student, have any personal knowledge of Student’s education or abilities, or possess any training to provide medical or educational opinions regarding Student’s needs. The witnesses’ prior employment is not required to understand the federal/state statutes, legal decisions involving the IDEA, or Congressional intent for the IDEA. Accordingly, this affidavit is given no weight or further consideration.
Relevant Factual Summary
Student is currently [REDACTED] years old and attends Public School on a 12-month school-year basis. The Student’s eligibility for special education support and services is not disputed based on the CPSE designation and uncontested finding that the Student presents with ASD.[34] Student has been diagnosed as having “severe ASD”; severe global developmental delay, including delays in receptive and expressive language, adaptive and self-care skills, and motor skills; significant delays in interpersonal skills, including decreased interest and ability in socialize and interact with others; and engages in repetitive noncommunicative behaviors.[35]
Student appears to have had a “normal” development from birth until they were approximately two years old. Student was speaking simple sentences, singing, counting to 20, interacting normally with others, and responding to their name.[36] Around age two, Student started to “regress,” which the witnesses describe as not responding to their name, speaking less until they stopped talking entirely, being disinterested in others, and not making eye contact.[37] Pediatrician explained that about 1/3 of children with ASD experience “regression,” which is when children stop speaking and interacting with others for an unknown cause, and their intellectual development slows.[38] The regressions can occur rapidly over a few months.[39] While Pediatrician did not examine Student until 2023, their description of typical “regression” for ASD children closely matches the observations of witnesses noted occurring when Student was two years old.
Student was evaluated for services by the CPSE in 2021.[40] Parent #1 attended the IEP meeting on July 30, 2021, where an IEP was created (2021 IEP). The 2021 IEP recommended placement in a 6:1:2 school setting, speech-language therapy (3 sessions a week for 30-minute sessions in an individual setting [3x30 1:1]); Occupational Therapy 3 sessions a week for 30-minute sessions in an individual setting [3x30 1:1]); and Parent counseling (1 session per quarter for a 60-minute session in an indirect setting). Public School was identified in the IEP as the placement location.[41] As discussed below, Parents’ Representative misstates the name of the placement location by transposing the word Development with Deaf.[42] The Parent’s Representative, in their prehearing submission, written closing statement, and during opening arguments, makes repeated claims that the Public School was not a proper placement because it admits deaf children and the teachers are trained to educate deaf students.[43] However, multiple documents, including many documents submitted by Parents’ Representatives, all contain the correct name for the location without using the term “deaf” to identify the institution.[44]
The IEP lists several management instructions, including small group instruction, a multi-sensory approach, modeling, repetition, encouragement, motivational techniques, refocusing and redirection, and appropriate reinforcement.[45] Additionally, the IEP directs the special education teacher and related service providers to use “appropriate modifications and individualized instruction to create access to the general education curriculum.”[46] Parent #1 claims in the DPC and their affidavit that the IEP team told them that only one school location was available for Student.[47] The 2021 IEP does not contain any note or request from Parents for ABA services or placement at a facility using ABA methodology. Parents have not submitted any correspondence showing they requested ABA services for the 2021-2022 school year. The 2021 IEP does not contain any notation or request that Parents asked for, or were rejected, ABA services or placement at a facility using ABA methodology.
For the 2022-2023 school year, an IEP meeting was held on August 3, 2022 (2022 IEP). Parent #1 is not listed as an attending party. The IEP shows that two attempts to contact Parents were made, and a meeting notice was sent on 7/11/22.[48] Parent #1 denies being aware of the 2022 IEP meeting or receiving a copy of the IEP until the disclosure of documents in this case.[49] Parent #1 also objects in the DPC and their affidavit to the continued placement at Public School because of the lack of progress student made during the 2021-2022 school year.[50] The 2022 IEP continued the same services as the prior IEP, with the addition of physical therapy (two sessions a week for 30 minutes in an individual setting). The “measurable annual goals” section was significantly increased, and more detailed items were included. The 2022 IEP extensively covers Student’s communication and adaptive living skills deficits. However, the following positive comments are noted: Student can follow simple commands like, pick up, clean up, or stop. However, assistants[sic]? is required; “student can match familiar objects, animals, colors, shapes, and numbers while completing insert puzzles when motivated.; Student identifies familiar objects from a group of objects; follows routine commands in context; Student started to use pictures for communication; Student is able to put away toys with adult assistance.[51] Additionally, a May 12, 2022 Counseling progress report indicated that Parent #1 had seen an increase in communication skills but also contained many areas of concern in communication skills, independent toileting, and self-dressing. Aside from the DPC, Parents have not submitted any correspondence showing they requested, or were denied, ABA services for the 2022-2023 school year.
On May 31, 2023, after the filing of the DPC, a “turning 5” IEP meeting (2023 IEP) was held to prepare for Student entering Kindergarten in September 2023.[52] Among the people attending the 2023 IEP meeting were Parent #1, Parents’ Representative, and Witnesses 1, 2, 3, and 4.[53] As detailed below, this FOFD will not address any claims regarding the 2023 IEP. Therefore, no further discussion of the IEP is needed other than to note the Parents’ object to the IEP recommendations and to a placement at a District 75 school.
Pediatrician Evaluations
Pediatrician provides information regarding Student in their March 23, 2023 letter (Ex. G), the March 31, 20223 Developmental Behavior Assessment (Ex H), their affidavit (Ex P), and testimony at the Due Process Hearing. Student was tested and examined on three occasions between January -March 2023. The cause of Student’s ASD is unknown, but testing rules out a known connection to chromosomal, genetic, or epilepsy-related causes.[54]
Student is diagnosed as having “severe ASD.”[55] During testing by Pediatrician, Student is described as being non-verbal, not responding to their name, not making eye contact with the examiner or the mother, and making limited eye contact with the father.[56] Student’s play and manipulation of objects were at a level much younger than their chronological age.[57] The limits to Student’s daily living activities are not in dispute, with Student unable to drink from a cup, use feeding utensils, independently dress or indicate when they need to use the toilet.[58] Regarding Student’s communication abilities, they were nonverbal during the interviews and was diagnosed with Global Development Delay in receptive and expressive language skills.
Pediatrician reported limited success in engaging Student during the office visit, which made formal testing impossible.[59] Indeed, the Vineland-3 and CARS2-ST testing required interviews with Parents for completion. Pediatrician claims that “teachers and parents concur that [Student] has not made any progress.”[60] However, Pediatrician’s submissions do not state any basis of knowledge for this conclusion or document any teacher evaluations they reviewed. Pediatrician’s testimony shows that they did not see any of the documents indicating the limited progress being made by Student.[61] Accordingly, the claim of universal agreement that Student “did not make any progress” is not credible and not accepted as an undisputed fact in the FOFD.
Regarding Student’s special education needs, Pediatrician recommends Student receive (a) small, highly structured special education school where they can receive ABA therapy on an individualized, 1:1 basis; (b) 40 hours per week of ABA therapy (with 20 hours per week of home-based 1:1 ABA therapy); (c) sessions with a Board Certified Behavior Analyst (BCBA); (d) 2,400 hours of compensatory education; (e) speech-language therapy three times a week for 45 minutes sessions; (f) use of an augmentative speech device; and (g) OT/PT services based on updated evaluations. Pediatrician admitted that they did not independently calculate the 2,400 hours of compensatory education and had been given that number.[62] Regarding the needed compensatory education Pediatrician admitted that the determination would vary between children, who will require dinner breaks, rest, and sleep time after returning home from school to avoid overwhelming the Student.[63]
Proposed Private School
Private School is an intensive 1:1 school program that uses ABA to teach children with special needs. Private School Representative is the program director of Private School and possesses a Doctor of Psychology, a Doctorate Level BCBA, and NYS licenses for special education teaching and as a Licensed Behavior Analyst (LBA). They have over 20 years of work experience in the field of autism and related developmental disability.
Private School Representative reviewed Student’s neuropsychological reports, IEP, and clinical reports and, in their affidavit,[64] comments on parts of the documents.[65] The affidavit refers to exhibits that do not match records provided by Parent’s representative.[66] However, despite these inaccuracies, the comments cited by the witness can be found in the other Exhibits in the record, so I decline to disregard the witness’s opinions completely. They also personally observed Student on February 8, 2023 and believe Student matches the profile for admission at Private School[67]. The Private School Representative does not provide an opinion regarding the appropriateness of the 2021 IEP. The Private School Representative opines that the 2022 IEP was inappropriate because it lacked parental input, a 6:1:2 placement was inappropriate, and the CPSE failed to consider a 1:1 ratio placement when evidence showed “overwhelming evidence that [Student] required one.”[68] They believe that Student requires ABA therapy on an individualized basis and missed 1,200 of individualized instruction ABA therapy per year.[69]
CONCLUSIONS OF LAW AND ANALYSIS
Preliminary Discussion on the IDEA
The IDEA provides that children with disabilities are entitled to a FAPE.[70] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, delivered in conformity with a comprehensive written IEP.[71] When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[72] 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.”[73] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.”[74]
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parent’s child; or (III) caused a deprivation of educational benefits.”[75] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.[76] The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents."[77]
In New York, 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.[78]
I. Defining the Grounds for Relief to be Considered in the FOFD
A. Facts and issues raised in the Prehearing Statement are barred from consideration.
I hold that the claims raised in the Prehearing Statement are barred from consideration in this action because they were submitted less than five days before the Due Process Hearing and failed to comply with the regulations for amending a DPC.
New York State has imposed clear instructions regarding the subject manner to be considered at a Due Process Hearing and the requirement for the DPC. Regarding the subject matter for a Due Process Hearing, NYS regulations create a statutory bar to prevent an IHO from considering issues not raised in the DPC, absent the district's or IHO's consent to a timely amendment."[79] The DPC "must list all of the alleged deficiencies in the IEP" and "[t]he Department then has thirty days to remedy these deficiencies without penalty."[80] The parent must state all of the alleged deficiencies in the IEP in the parent's initial due process complaint, and the Courts have held that permitting the parents to add a new claim after the resolution period has expired would allow them to sandbag the school district.[81] Amendments to a DPC require either the other parties’ consent or approval from the IHO. However, the IHO cannot grant an amendment within five days of the Due Process Hearing.[82]
In this action, the service of the Preliminary Statement was untimely. The Preliminary Statement was served two days before the Due Process Hearing and seeks to bring new facts and grounds to establish a denial of FAPE. As such, the claims for the denial of FAPE contained in the document will not be considered.[83]
B. Challenge to the creation of the 2023 IEP or its recommendation
Similarly, Parents’ request for a determination on the 2023 IEP is DENIED as speculative and premature. The Prehearing Statement served two days before the Due Process Hearing, is the first submission raising any specific claims regarding the content of the 2023 IEP. Additionally, the Parents’ Representative only served disclosure documents connected to the 2023 IEP two days before the Due Process Hearing. While the DPC contains a request for relief in the 2023-2024 school year, these claims are general and ask for relief resulting from DOE actions occurring during the 2021-2022 and 2022-2023 school years. These general allegations in the DPC are insufficient to give the DOE notice regarding the nature of any disputes and deficiencies to allow the DOE to resolve the issue or prepare for a DPH.
The challenge to the 2023 IEP is premature. The 2023 IEP is intended to be implemented in September 2023. Therefore, Parents’ claims regarding the 2023 IEP and proposed placement are not yet ripe because no placement location is recommended, and the DOE still has time to alter the IEP plan. Parents’ have not had the opportunity to investigate the placement recommendation or determine if the placement is appropriate to meet Student’s needs. It is speculative to conclude that any DOE recommendation is inappropriate presently.
The 2023 IEP was created after the filing of the DPC. Claims regarding the 2023 IEP can only be combined with this action with Parents properly filing an amended DPC. As such, the merits of any claims relating to the 2023 IEP or any placement recommendation are not considered in this FOFD. Parents must commence another action to challenge the 2023 IEP or placement recommendation.
II. Non-IDEA Claims
A. Relief under the NY State and NY City Human Rights Laws
Parents Representative seek relief in the DPC for violations of the State HRL and City HRL based on the allegations that the CPSE impermissibly discriminated against an immigrant family and the CPSE’s “procedure to consider a child’s ethnic background.”[84] The US Court of Appeals, Second Circuit, has held that "tort-like damages are simply inconsistent with IDEA's statutory scheme."[85] Since compensatory monetary damages are not available in the administrative forum under the IDEA, an IHO has no jurisdiction to award any remedy for a State HRL or City HRL claim.[86]
Accordingly, the IHO lacks jurisdiction for these claims, and all requests for relief under the State HRL and City HRL are DENIED.
B. Relief under 42 USC §1983
Parents seek relief in the DPC for violations of Section 1983 based on the allegations that the DOE deprived Student of their constitutional right to due process of law.[87] Similarly to the claims under the State HRL and City HRL, the damages for a Section 1983 action are "tort-like damages” and inconsistent with IDEA's statutory scheme."[88] Since compensatory monetary damages are not available in the administrative forum under the IDEA, the IHO has no jurisdiction to award any remedy for a claim under Section §1983.[89]
Accordingly, the IHO lacks jurisdiction over these claims, and all requests for relief under Section §1983 are DENIED.
C. Claims under Section 504 of the Rehabilitation Act
The DPC alleges violations of Section 504 of the Rehabilitation Act because the DOE placed Student in a location “in a school unable to teach them” and failed to “accommodate Student’s disability.”[90]
Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."[91] A plaintiff makes out a prima facie case under Section 504 by showing that (1) plaintiff is a “qualified individual with a disability;” (2) plaintiff was “excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by [the] public entity;” and (3) “such exclusion or discrimination was due to [plaintiff's] disability."[92] The Act requires that "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers…[T]o assure meaningful access, reasonable accommodations in the grantee's program or benefit may have to be made.”[93] Moreover, “something more than a mere violation of the IDEA is necessary in order to show a violation of Section 504 in the context of educating children with disabilities, i.e. a plaintiff must show that a school district acted with bad faith or gross misjudgment.”[94]
In this action, Parents have failed to show Student was denied meaningful access or excluded from participation in a DOE service or activity. Student was placed at a school intended to educate individuals with disabilities similar to those of Student. Student was placed in a 6:1:2 classroom and provided speech-language therapy, occupational therapy, physical therapy, and counseling services. Parents have failed to show that Student was excluded from participating in any program. Furthermore, Parents do not present evidence that the DOE acted with bad faith or gross misjudgment. All other allegations under Section 504 are subsumed into the claims brought for violations of the IDEA and NYS Education laws.
Accordingly, claims for relief under Section 504 are DENIED.
III. IDEA Claims for 2021-2022 and 2022-2023 School Years
A. The 2021-2022 school year
1. There were no procedural or substantive violations in creating the 2021 IEP.
As detailed herein, the DOE met its obligations under the IDEA to provide Student with a FAPE with the 2021 IEP.
A school district meets its obligations to provide a FAPE by creating an IEP that complies with the IDEA's procedural and substantive requirements.[95] In the Second Circuit, a review of the adequacy of an IEP proceeds in two steps: (1) whether "the District has complied with the IDEA's procedural requirements" and (2) whether, substantively, the IEP is "'reasonably calculated to enable the child to make progress appropriate in light of the child's circumstances.”[96] As to this latter requirement, the IEP need not bring the child to grade-level achievement but must aspire to provide more than de minimis educational progress."[97]
The DOE sufficiently met its burden to show that the IEP provided a FAPE. The IEP must be evaluated based on what was known at its time of creation.[98] In this action, the 2021 IEP team had the proper members.[99] Parent #1 was present to provide input.[100] No objections or rejection of proposed services requested by Parents were noted on the document.[101] The 2021 IEP references the evaluations and recommendations created in preparation for the IEP meeting.[102] The 2021 IEP contained clear annual goals and was “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[103]
Parents’ Representative does not demonstrate any procedural or substantive violations. Indeed, even if, arguendo, there were any procedural violations, there has not been a showing that they reached a level that prevented Parents from contributing to the Student’s education. Private School Representative does not comment on the 2021 IEP or provide an opinion on its ability to provide Student with a FAPE in 2021-2022. The retroactive dissatisfaction in the Student’s progress, considering the diagnosis of severe ASD, does not itself establish a denial of FAPE.[104]
Accordingly, the DOE met the burden to establish that FAPE was provided in the 2021 IEP.
2. Public School was appropriate to meet Student’s special education needs.
Parents’ Representative argues that Student was denied a FAPE because the CPSE only gave them one choice in school location. They also argue that the Public School did not have adequately trained staff or teaching methodologies for Student. These claims are without merit. I hold that the Public School was a proper placement and could implement the 2021 IEP.
Parents’ Representative’s arguments center on the claims that the Public School was improper due to its designation as a school for the “deaf.” The insertion of the name “deaf” when describing Public School’s name is rejected. As detailed above, the name “deaf” does not appear in the name of Public School. Further, there was no evidence that the teachers have training limited to teaching deaf children. Instead, the multiple reports prepared by Public School demonstrate the great effort exerted to teach Student.[105] The Public School provided the speech-language and occupational therapy services required by the 2021 IEP. Moreover, the DOE is not required under the IDEA to prove the qualifications of the teachers, the methodology used, or the composition of the classes to establish FAPE.[106] The Second Circuit grants the school district discretion when deciding how to teach a student. The IDEA does not require a school district to provide a specific program or methodology for the education of children with disabilities.[107] The IDEA does not require the DOE to provide multiple placement locations, only one capable of implementing the requirement of the IEP. Parents are not granted an automatic veto of the location under the IDEA.[108] Parents did not submit proof that they requested another placement location during the 2021-2022 school year or objected to Public School. Accordingly, the DOE sufficiently met its burden to show it provided a school placement capable of implementing the IEP.
I hold that Student was provided a FAPE during the 2021-2022 school year, and the request for compensatory relief is DENIED for this school year.
B. 2022-2023 School year
1. The DOE failed to demonstrate that the 2022 IEP provided Student with FAPE.
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.”[109] When the 2022 IEP was created, Student required teacher support for almost every activity, such as completing assignments, being reminded of class rules, putting away toys, walking in a line, feeding himself, and toileting.[110] Additionally, Student could not interact with peers or adults, identify peers by name, consistently respond to his name or use expressive language to indicate his needs.[111]
One of the claims in the DPC was that the 2022 IEP should have considered any 1:1 services considering Student's limited progress. Considering the Student’s need for constant intervention for various daily living skills, communication deficits, and to complete cognitive tasks, the DOE has failed to show that the IEP team properly considered other options to allow Student to progress.[112] Further, the 2022 IEP is deficient because there is no change regarding the management needs section for Student to adjust to the performance levels established for the IEP. There is no change in the IEP regarding the frequency or duration of speech and occupational therapy sessions. The IEP does not indicate why additional services were not provided for Student considering the struggles reported in the 2022 IEP. Also, the “other programs considered” section of the IEP only discusses placement in an 8:1:2 class with related services. There are no comments regarding consideration of or reasons for rejecting a smaller placement, change in related services, or providing home-based services to reinforce what was learned in school. Accordingly, considering the need for constant intervention and the recommendation that the Student needed “maximum adult support,”[113] I hold that the 2022 IEP does not demonstrate that the IEP team properly considered proper changes to the IEP considering the Student’s current unique circumstances.
Furthermore, the 2022 IEP contains multiple comments that “parents agree with teacher findings,” yet the IEP confirms that Parents were not present at the meeting.[114] There was no proof of mailing or information regarding the attempts to reach Parents or the nature of any prior communication with Parents. The 2022 IEP fails to indicate the basis for the statement of agreement from Parents. Without any sufficient explanation in the documents or testimony from an IEP team member, I hold that discrepancy is enough to show procedural violations that denied Parents’ ability to participate in the IEP process.
Accordingly, I hold that the DOE failed to provide Student a FAPE regarding the 2022-2023 school year.[115]
2. Compensatory Services
Having found a denial of FAPE in the 2022 IEP, as detailed herein, the request for compensatory education services is GRANTED as detailed below.
An IHO has broad discretion when awarding compensatory education.[116] Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is granted or the amount of any award amount.[117] Furthermore, a request for compensatory relief may be denied if there is an insufficient causal link in the record between any deprivation and the student’s current deficits.[118] A hearing officer may award compensatory education relief through supplemental special education or related services when there has been a denial of a FAPE.[119] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied by providing additional services before the student becomes ineligible for instruction because of age or graduation.
The DOE has the burden of proof on the issue of compensatory education.[120] However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their entire requested compensatory remedy. Requested hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student.[121] Additionally, compensatory education awards are not designed to maximize a student’s potential or to guarantee that the student achieves a particular grade level in the student’s areas of need.[122] Instead, an award of additional services should aim to place a student in the position they would have been in had the district complied with its obligations under the IDEA.[123]
Typically, a compensatory education award is crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of denial). Under the qualitative approach, the focus is on a student’s needs. It is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
I hold that Parents request for 1,200 hours of ABA services for the 2022-2023 school year is excessive and not supported by the record.[124] The 2022 IEP does not recommend ABA or any home-based services. Therefore, there is no entitlement to 1:1 ABA therapy for the entire time Student was at Public School, and a “quantitative” method cannot be used to calculate any award. Furthermore, the DOE is permitted to make an educational decision on how to teach a student. The IDEA does not require a school district to provide a specific program or methodology for the education of children with disabilities.[125] Accordingly, I reject Parents’ Representative’s argument for compensatory services for every school hour during the 2022-2023 school year.
Instead, a “qualitative” approach or method will be utilized to determine the award. While the DOE was not obligated to provide a specific methodology or provide ABA services for every child with ASD, the IDEA does require access to specialized instruction and related services which are individually designed to provide educational benefits to the handicapped child.[126] Thus, the DOE is empowered to award ABA services and/or home-based therapy if warranted for a student’s individual needs. Pediatrician and Private School Representative both sufficiently establish that ABA therapy would be beneficial to assist Student, increase producing desired appropriate behaviors and decrease the frequency of problematic behaviors.[127] The ABA methodology is a peer-reviewed and proven methodology to assist in correcting maladaptive behavior in children with ASD. Pediatrician recommends at least 40 hours of ABA therapy per week.[128] If Student receives six hours of instruction per day, that equals 30 hours per school week, leaving a deficit of 10 hours per week.
Moreover, an award of 1,200 hours would lead to diminishing returns or could overwhelm the student.[129] This calculation equates to an additional six hours of therapy a day[130] and six hours of school instruction. Pediatrician acknowledges that children can be overwhelmed by too much education.[131] There is no evidence that this [REDACTED]-year-old Student can stay focused or benefit from such a large amount of additional therapy. Therefore, I hold that the amount requested by Parents would overwhelm student.
As such, as compensatory education to assist in placing Student in the position they would have been without the denial of FAPE, I award 10 hours per week of ABA therapy services, to be provided at Student’s home on a 1:1 basis for a total award of 480 hours.
IV. IDEA claims for the 2023-2024 school year
A. The prospective placement at Private School
is not an appropriate award to remedy the denial of FAPE in the 2022-2023 school year.
Parents’ request for the prospective tuition funding at a non-public school as compensatory education is DENIED.[132]
Courts have held that the intent of the IDEA is best effectuated by ordering an IEP review and revision rather than prospective placement in a private school.[133] The Southern District of New York has held that orders of prospection service are disfavored as a “matter of law.”[134]
In this action, Parents’ Representative argues that prospective relief is appropriate based on their subjective belief that the prior year placements were not appropriate, so therefore, any future recommendation by the CSE will also be inappropriate. Parents’ Representative further argues that the only acceptable prospective placement for Student is at an ABA-based facility. The CSE has not made a placement recommendation for the 2023-2024 school year. The CSE has not yet missed any deadlines and can amend the 2023 IEP before the September 2023 commencement date. The arguments from Parents rely upon speculation and unsupported claims of ineptitude. As noted above, the IDEA grants school districts discretion when making an educational decision on how to teach a student, and the IDEA does not require a school district to provide a specific program or employ a specific methodology in providing for the education of children with disabilities.[135]
Accordingly, I decline to speculate as to the likelihood that the DOE would fail to offer the Student a FAPE in the future. Therefore, I DENY the request for prospective relief.[136] The award of prospective tuition funding at a private school is not required as compensatory relief for the denial of FAPE in the 2022-2023 school year. The discussion of a proper placement for Student is only appropriate once the 2023 IEP has been appropriately challenged at a Due Process Hearing.[137]
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The claims for relief pursuant to the City HRL, State HRL, Section 1983, and Section 504 are DENIED and DISMISSED;
2. Student was provided with a FAPE for the 2021-2022 school year, so the request for compensatory relief for the 2021-2022 school year is DENIED;
3. Student was denied a FAPE for the 2022-2023 school year so that Parent’s request for compensatory educational services is GRANTED. The DOE shall fund 480 hours of one-to-one ABA instruction as compensatory education for Student. Payment is to be made at the provider’s market rate within thirty (35) days of the DOE’s receipt of the respective provider’s invoice. Such services:
a. must be used within three years of the date of this Order; and
b. may be provided in person or remotely;
c. may be provided at the Student’s home; and
d. must be provided by an individual holding a New York State license or certification in the respective areas; and
4. The request for prospective funding for tuition at Private School, as an award of compensatory education relief, is DENIED.
So Ordered.
Kevin T. McGrath
Dated: July 10, 2023
Kevin T. McGrath, Esq. (signed electronically) 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.
Footnotes
[1] Since the school was a designated location by the CPSE and tuition was publicly funded, the location is referred to as Public School regardless of the DOE’s control and authority over the institution.
[2] IHO Ex. I.
[3] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[4] Ex. A.
[5] The IEP for 2023-2024 was created on May 31, 2023. See Ex. J.
[6] Id.
[7] IHO Ex. II.
[8] IHO Ex. III. Parents’ motion was denied. The decision on Parent’s motion was included as part of the May 11, 2023 Status Conference Summary and Order, annexed as IHO Ex. V.
[9] Parents were requesting documents from the DOE related to the evaluations made in preparation for the 2021 and 2022 IEPs. DOE representative consented in subsequent emails to provide all requested documents as part of their document disclosure. The documents were exchanged on May 17, 2023 and constitute Exhibits 1-30. As such, the subpoena was not issued by the IHO. IHO Ex. IV contains the post-conference emails related to the subpoena request.
[10] The Juneteenth holiday (June 19, 2023) was not considered a business day when calculating the five-day disclosure date.
[11] IHO Ex. V.
[12] The “declarations” were all signed but not notarized statements. For the decision, the terms “declaration” and affidavit will be used interchangeably. The DOE did not object to the admission of the statements, despite the IHO warning to Parents’ Representative that all witness statements needed to be notarized documents. See IHO Ex. VI. Since Parents’ Representative offered to make the witnesses available to appear in person, and the DOE waived any cross-examination, for efficiency purposes the declarations were accepted into evidence without being notarized.
[13] Parents’ submissions were rejected because they did not comply with the IHO’s prior Orders, namely because they lacked any exhibit designation and were not contained within a single pdf formatted document.
[14] IHO Ex. VII is the Parents’ Prehearing Statement.
[15] The declaration was provided on June 14, 2023, however, it was left out of the June 20, 2023 disclosures.
[16] IHO Ex. VIII.
[17] See Appendix B to this Order. The objection to the exhibits focused on the lack of witness testimony to establish a foundation. After due consideration, the documents were admitted as being sufficiently reliable for review at an administrative hearing.
[18] The relevance and admissibility of the various witness declarations will be discussed below.
[19] Submitted in support of Parents’ request for direct funding of tuition for the 2023-2024 school year.
[20] See Appendix B to this Order. The DOE objected to exhibits A-J as being served untimely. However, exhibits A-J were duplicates of documents provided by the DOE, so the documents were admitted into evidence. The DOE consented to the admission of exhibits K-S (the declarations of witnesses) and consented to the admission of exhibit T (the unintentionally omitted declaration of Witness #5) and exhibits U and V (the Parents’ tax records).
[21] Personal identifiable information has been redacted.
[22] This claim was asserted in the “solution” section of the DPC but gives sufficient notice to the DOE for a claim of the denial of FAPE.
[23] IHO Ex. I.
[24] IHO Ex. VII.
[25] Ex. R.
[26] Ex. P.
[27] Ex. O.
[28] Ex. L.
[29] The evidence admitted at this administrative proceeding must be “relevant & reliable” (including hearsay), regardless of formal rules of evidence. See Jalloh v. District of Columbia, 535 F. Supp. 2d 13, 49 IDELR 190 (D.D.C. 2008); R.B. v. Dept. of Educ., 57 IDELR 155 (SDNY 2011).
[30] Ex. M.
[31] Ex. N.
[32] Ex. K.
[33] Ex. T.
[34] Ex. J.
[35] Ex. G and H.
[36] Ex K, L, M, N. See also Ex. P at the second numbered ¶19.
[37] Ex K, L, M, N. See also Ex. P at the second numbered ¶19.
[38] Tr. 76-78.
[39] Id.
[40] Ex. 10.
[41] Ex. 1-1. As will be discussed in the Analysis section, Parents’ Representative misstates the name of the placement location by transposing the word Development with Deaf. (see IHO Ex. I at pg 3.) The Parent’s Representative, in their prehearing submission, written closing statement, and during opening arguments, makes repeated claims that the Public School was not a proper placement because it admits deaf children and the teachers are trained to educate deaf students. Tr. 20, 38, 45, 55, 58, and 63. However, multiple documents, including many documents submitted by Parents’ Representatives, all contain the correct name for the location without using the term “deaf” to identify the institution (Ex. 1, 2, 6,7,11,1216, 17, 18, 19, D, F, E, H and P).
[42] IHO Ex. I at pg 3.
[43] Tr. at 20, 38, 45, 55, 58, and 63.
[44] Ex. 1, 2, 6, 7, 11, 12, 16, 17, 18, 19, D, F, E, H and P.
[45] Ex. 1-6.
[46] Id.
[47] Ex. R at ¶4. The DOE does not provide evidence to contradict this statement.
[48] Ex. 2-2.
[49] Ex. R at ¶5-¶6.
[50] Ex. R at ¶6.
[51] Ex. 2.
[52] Ex. J.
[53] Ex. I.
[54] Ex. P at ¶20; Tr. at 77-78.
[55] Ex. P at ¶33; Tr. at 76.
[56] Ex. G.
[57] Ex. G.
[58] Ex. P at ¶22-24.
[59] Ex. G.
[60] Ex. P at ¶31; Ex H.
[61] Tr. at 94.
[62] Tr. at 86. Pediatrician did acknowledge that the 2,400 hours can be calculated as 200 school days per year, with six hours of instruction per day would equal 1,200 for a school year (Tr. at 88).
[63] Tr. at 93-94.
[64] It is again noted that the DOE waived cross-examination of the witness to challenge their testimony and opinions.
[65] Ex. O at 11-15. It is noted that the witness chose very selective quotes to establish their opinion and failed to include any comment or acknowledgment that the Public School and IEP documents show some, but limited progress. As such, the witness’s comments regarding prior failures to educate are incomplete, and some, but limited, credibility will be given to the witness’s opinions.
[66] For example, regarding Ex. O: ¶12 refers to “Hopkins Evaluation, Exhibit C”, however, Exhibit C is the 2022 IEP; ¶13 refers to “Exhibit D, Annual Progress Report p. 4), however, Exhibit D is IEP quarterly Progress Report that does not contain the fact stated by the witness; ¶15 refers to “annual Progress Report page 3” regarding a recommendation of Student’s placement, however, it is unclear which year report they are referring to; ¶17 refers to the 2022-2023 IEP as Exhibit E, instead of its correct number for the IEP which is Exhibit C, and the attendance page was identified as Exhibit I; and ¶18 incorrectly refers to the IEPs as Exhibits E and F, which are Public School reports.
[67] Their observations closely match the evaluations from Public School, Pediatrician’s testimony, and information provided by other witnesses, so there is no need to repeat Student’s cognitive, communicative, and motor deficits.
[68] Ex. O at 18. There is no citation or reference to establish “overwhelming” support that 1:1 ratio placement was required to allow Student to make educational progress. As such, this claim is not found to be credible and is nothing more than hyperbole.
[69] Id. at 24.
[70] 20 U.S.C. §1400(d)(1)(A).
[71] See 34 C.F.R. § 300.13.
[72] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[73] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[74] 20 U.S.C. § 1415(b)(6)(A).
[75] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[76] J.L. v. New York City Dept. of Educ., 324 F Supp 3d 455, 467 (SDNY 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed App 12, 14 (2d Cir. 2011).
[77] Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998), quoting, Tucker v. Bay Shore Union Free Sch. Dist., 873 F2d 563, 567 (2d Cir. 1989).
[78] NY Educ. Law § 4404(1)(c).
[79] 8 NYCRR 200.5(j)(1)(ii) “The party requesting the impartial due process hearing shall not be allowed to raise issues at the impartial due process hearing that were not raised in the notice filed under subdivision (i) of this section unless the other party agrees otherwise; M.R. v. S. Orangetown Cent. Sch. Dist., 2011 U.S. Dist. LEXIS 145177 (SDNY 2011); Bd of Educ v. A.D., 2017 U.S. Dist. LEXIS 165550 (SDNY 2017).
[80] 8 NYCRR 200.5(i)(1)(iv) (providing that the due process complaint must include "a description of the nature of the problem of the student . . . including facts relating to such problem"); R.E. v. NYC Dept of Educ, 694 F3d 167, 187-188 (2d Cir 2012).
[81] R.E., 694 F3d at 187-188; T.G. v. New York City Dept of Educ., 973 F. Supp. 2d 320, 335-336 (SDNY 2013).
[82] 8 NYCRR 200. 5(i) (7).
[83] IHO Ex. VII.
[84] IHO Ex. I.
[85] Polera v Bd. of Educ., 288 F3d 478, 485 (2d Cir 2002).
[86] See Taylor v. Vt. Dept. of Educ., 313 F3d 768, 786 (2d Cir. 2002); Polera v. Bd. of Educ., 288 F.3d at 483; R.B. v. Bd. of Educ. of the City of New York, 99 F Supp. 2d 411, 418 (SDNY 2000).
[87] IHO Ex. I.
[88] Polera v Bd. of Educ., 288 F3d at 485.
[89] See Taylor v. Vt. Dept. of Educ., 313 F3d 768 at 786; Polera v. Bd. of Educ., 288 F.3d at 483; R.B. v. Bd. of Educ. of the City of New York, 99 F Supp. 2d at 418.
[90] IHO Ex. I.
[91] B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir 2016), quoting 29 U.S.C. § 794(a); Harrington v Jamesville Dewitt Cent. Sch. Dist., 2017 US Dist. LEXIS 54930, at 26-27 (NDNY 2017).
[92] Harrington, quoting Fulton v. Goord, 591 F.3d 37, 43 (2d Cir 2009).
[93] Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 186 (2d Cir. 2015), quoting Alexander v. Choate, 469 U.S. 287, 301 (1985).
[94] See also E.L. v. Beford Cent. Sch. Dist., 2022 US Dist. LEXIS 153538 (SDNY 2022), quoting Y.D. v. NYC Dept. of Ed., 2016 US Dist LEXIS 20776 (SDNY 2016).
[95] N.B. v. N.Y.C. Dept. of Educ., 711 F. App'x 29, 32 (2d Cir 2017).
[96] P. v. West Hartford Bd. of Educ., 885 F.3d 735, at 748 (2d Cir 2018), quoting Endrew F., 137 S. Ct. at 1001.
[97] N.B., 711 Fed. Appx at 32.
[98] S.F. v. N.Y. City Dept. of Educ., 2011 U.S. Dist. LEXIS 129672, 50 (SDNY 2011), citing 20 U.S.C. 1414(c)(1)(A) (which states that in developing the IEP, a CSE is required to "review existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related services providers).
[99] 200. 3(a).
[100] Ex. 1.
[101] Id.
[102] Ex. 1.
[103] Endrew F., 580 US 386.
[104] Endrew F, 580 at 397 (the holding permits “slow gains” provide a basis for rejecting a challenge to the IEP when tied to the child’s “particular circumstances”).
[105] Ex. 7.
[106] S.F. v. N.Y. City Dept. of Educ., 2011 U.S. Dist. LEXIS at 50 (“A proposed classroom composed of students with differing ‘intellectual, social, and behavioral needs can still be adequate so long as ‘a core group was operating at an intellectual level sufficiently comparable to [the Student's] to permit her to continue making academic progress.’), quoting Walczak, 142 F.3d at 133-34.
[107] H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 U.S. Dist. LEXIS 97870 (SDNY 2012), aff'd sub nom. H.C. ex rel. M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F App'x 64 (2d Cir 2013); see A.H. ex rel. J.H. v. Dep't of Educ. of N.Y.C., 394 F. Appx 718, 721 (2d Cir 2010) ("IDEA does not require that an IEP furnish every special service necessary to maximize each handicapped child's potential.")
[108] S.W. v. New York City Dept. of Educ., 92 F. Supp 3d 143, 157 (SDNY 2015) (“The IDEA grants parents the right to provide input, not to have veto power.”); See also T.Y. v. New York City Dept. of Educ., 584 F.3d 412, 420 (2d Cir. 2009); P.K. ex rel. P.K. v. Bedford Cent. Sch. Dist., 569 F Supp 2d 371, 383 (SDNY 2008) ("The fact that the District staff ultimately disagreed with the opinions of plaintiffs and their outside professionals does not mean that plaintiffs were denied the opportunity to participate in the development of the IEPs, or that the outcomes of the CSE meetings were 'pre-determined. A professional disagreement is not an IDEA violation.")
[109] Endrew F., 580 US 386.
[110] Ex. 7.
[111] Id.
[112] This is not a finding that the IEP team or Public School failed to allow Student to make progress or was derelict in its efforts to teach Student. Significantly, the 2022 IEP is not simply a copy of the prior IEP as claimed by Parents’ Representative. The 2022 IEP makes changes to the Annual Goals section being established for Student and adds physical therapy services.
[113] Id.
[114] I do not make a finding that the DOE denied FAPE by failing to give Parents actual notice or that Parents intentionally chose not to appear, only that the FOFD finds as an uncontested fact that Parents were not present at the 2022 IEP meeting.
[115] Having found these grounds for the denial of FAPE, I decline to address the other arguments raised by Parents regarding the 2022 IEP.
[116] Application of Student with a Disability, Appeal No. 23-019; see Mr. and Mrs. A v. NYC Dept of Educ. 769 F. Supp 2nd 403 (SDNY 2011); Forest Grove v. T.A., 557 US 230 (2009).
[117] See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.
[118] See, e.g., Phillips v. Dist. Of Columbia, 932 F Supp 2d 42 (D.C. Cir. 2013) (upholding denial where the student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to the determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F3d 1489 (9th Cir. 1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services).
[119] See P. v. Newington Bd. of Educ., 546 F3d 111, 123 (2d Cir. 2008).
[120] See M.M. v. New York City Dept. of Educ., 2017 WL 1194685, 4 (SDNY 2017); Doe v. East Lyme Bd. of Educ., 790 F3d 440, 457 (2d Cir. 2015) ; Reid ex rel. Reid v. Dist. of Columbia, 401 F3d 516, 524 (DC Ct of App 2005); Application of Student with a Disability, Appeal No. 21-169.
[121] See M.M., 2017 WL at 8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”), citing Branham v. Govt. of the Dist. of Columbia, 427 F3d 7, 11-12 (D.C. Cir. 2005).
[122] Application of Student with a Disability, Appeal No. 23-019.
[123] Id.
[124] Pediatrician states this number was provided to them and not independently calculated by them. While they acknowledge the number is reached by calculating the total school hours for 2022-2023, they do not show a sufficient connection that every hour of school was unproductive and needs to be “repeated” to help cure Student’s deficits.
[125] H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 U.S. Dist. LEXIS 97870 (SDNY 2012), aff'd sub nom. H.C. ex rel. M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F App'x 64 (2d Cir 2013); see A.H. ex rel. J.H. v. Dept. of Educ. of N.Y.C., 394 F. Appx 718, 721 (2d Cir 2010) ("IDEA does not require that an IEP furnish every special service necessary to maximize each handicapped child's potential.")
[126] Rowley, 458 U.S. at 201.
[127] Ex. O; Tr. at 84.
[128] Tr. at 86-88.
[129] R.B. v. NYC Dept of Ed, 2013 WL 5438605 (SDNY 2013) (holding that if the sum and total of the compensatory education relief requested by Parents were ordered, it would amount to a punitive award.)
[130] Even if spread out over several years, this is an overwhelming amount of therapy for the student to need in addition to any services provided at a school location.
[131] Tr. at 93-94.
[132] As noted above, the FOFD makes no determination of the request for tuition funding as it relates to the 2023 IEP.
[133] Adams v. Dist. Of Columbia, 285 F. Supp 3d 381, 393 (DDC 2018).
[134] V.W. v. NYC Dept. of Educ., 2022 US Dist LEXIS 147630 (SDNY 2022).
[135] H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 U.S. Dist. LEXIS 97870 (SDNY 2012), aff'd sub nom. H.C. ex rel. M.C. v. Katonah-Lewisboro Union Free Sch. Dist., 528 F App'x 64 (2d Cir 2013); see A.H. ex rel. J.H. v. Dep't of Educ. of N.Y.C., 394 F. Appx 718, 721 (2d Cir 2010) ("IDEA does not require that an IEP furnish every special service necessary to maximize each handicapped child's potential.")
[136] Application of Student with a Disability, Appeal No. 23-019; see M.F. v. N Syracuse Cent. Sch. Dist., 2019 US Dist LEXIS 53469 (NDNY 2019).
[137] See Eley v. Dist. Of Columbia, 2012 US Dist LEXIS 120026 (DDC 2012).
APPENDIX A – REDACTION IDENTIFICATION PAGE
| [REDACTED] Information | Term Used In FOFD |
|---|---|
| [REDACTED] | Student |
| [REDACTED] | Date of Birth |
| [REDACTED] | Student’s I.D. Number (OSIS) |
| [REDACTED] | Parent #1 |
| [REDACTED] | Parent #2 |
| [REDACTED], Consultant Hearing Representative | DOE Representative |
| [REDACTED], Esq. | Parents’ Representative |
| [REDACTED] | Private School |
| Dr. [REDACTED] | Private School Representative |
| [REDACTED] | Public School |
| Dr. [REDACTED] | Pediatrician |
| [REDACTED] | Witness #1 |
| [REDACTED] | Witness #2 |
| [REDACTED] | Witness #3 |
| [REDACTED] | Witness #4 |
| [REDACTED] | Witness #5 |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Program | 07/30/2021 | 14 |
| 2 | IEP | 08/03/2022 | 18 |
| 3 | Request for approval | 08/03/2022 | 1 |
| 4 | Request for authorization for additional testing | 06/22/2022 | 1 |
| 5 | Request for review of IEP | 06/22/2022 | 1 |
| 6 | Physical therapy Screen | 12/07/2021 | 1 |
| 7 | Notice of annual review | 07/01/2022 | 13 |
| 8 | Request for consent | 12/07/2021 | 1 |
| 9 | Request for authorization | 12/07/2021 | 2 |
| 10 | CPSE packet checklist | 06/23/2021 | 44 |
| 11 | Preschool acceptance letter | 08/09/2021 | 1 |
| 12 | Final notice of recommendation | 08/03/2022 | 1 |
| 13 | Final notice of recommendation c-78 | 08/09/2021 | 1 |
| 14 | Authorization of IEP change | 08/03/2022 | 1 |
| 15 | AIP authorization to attend | 08/11/2021 | 1 |
| 16 | Annual educational progress report | 01/02/2023 | 10 |
| 17 | Speech-language annual report | 12/12/2022 | 9 |
| 18 | Occupational therapy progress report | 12/05/2022 | 9 |
| 19 | Annual educational progress report (duplicate) | 01/02/2023 | 10 |
| 20 | Notice of IEP meeting (draft) | Undated | 2 |
| 21 | IEP (draft) | Undated | 9 |
| 22 | Notice of IEP meeting (draft) | Undated | 2 |
| 23 | Consent to use electronic mail | 03/27/2023 | 1 |
| 24 | Assessment planning | 11/245/2022 | 1 |
| 25 | Classroom observation | Undated | 1 |
| 26 | Social history update | Undated | 1 |
| 27 | Social history update (draft) | 05/04/2023 | 3 |
| 28 | Request for reevaluation | 01/03/2023 | 1 |
| 29 | Prior written notice | 01/03/2023 | 5 |
| 30 | Consent for additional assessment | 02/27/2023 | 1 |
Parents Exhibits
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| A | [REDACTED]. Preschool Evaluation | 5/31/2021 | 26 |
| B | [REDACTED] Social History | 5/31/2021 | 4 |
| C | IEP | 8/03/2022 | 18 |
| D | [REDACTED] Annual Report | 8/2022 | 7 |
| E | [REDACTED] Annual Report | 1/2023 | 9 |
| F | Speech Therapist Report | 12/12/2022 | 4 |
| G | Letter, Dr. [REDACTED] MD | 3/23/2023 | 1 |
| H | Developmental-Behavioral Assessment | 3/31/2023 | 4 |
| I | CSE meeting Attendance | 5/31/2023 | 1 |
| J | IEP for 2023-2024 | 5/31/2023 | 27 |
| K | Declaration of [REDACTED] | 5/29/2023 | 1 |
| L | Declaration of [REDACTED] | 6/12/2023 | 1 |
| M | Declaration of [REDACTED] | 6/12/2023 | 4 |
| N | Declaration of [REDACTED] | 6/14/2023 | 4 |
| O | Declaration of Dr. [REDACTED], [REDACTED] | 5/22/2023 | 5 |
| P | Declaration of Dr. [REDACTED], M.D. | 6/13/2023 | 8 |
| Q | Classroom observation, [REDACTED] | 4/03/2023 | 2 |
| R | Declaration of [REDACTED] | 6/14/2023 | 3 |
| S | Curriculum Vitae, Dr. [REDACTED] | 6/26/2023 | 7 |
| T | Declaration of [REDACTED] | 6/14/2023 | 3 |
| U | Tax records | 2020 | 19 |
| V | Tax records | 2021 | 21 |
IHO Exhibits
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| I | Due Process Complaint | 3/27/2023 | 19 |
| II | Pre-Hearing Conference Summary and Order | 4/27/2023 | 2 |
| III | Parents’ Motion to Bifurcate | 5/08/2023 | 8 |
| IV | Emails related to Parent’s proposed subpoena | 05/2023 | 3 |
| V | Status Conference Summary and Order | 5/11/2023 | 4 |
| VI | Email related to requirements for affidavits | 05/30/2023 | 2 |
| VII | Prehearing Statement | 5/20/2023 | 19 |
| VIII | Parents’ Closing Statement | 5/22/2023 | 4 |