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CASE NUMBER: 599970 - NYC: 248472
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: May 23, 2023
Date(s) of Hearing: August 18, 2023
Actual Record Closed Date: August 23, 2023
Date of Decision: September 5, 2023
Time Sensitive Yes
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 18, 2023
For the Student:
[REDACTED] (“Parent”)
[REDACTED] (“Behavior Technician”)
For the Department of Education:
[REDACTED], Esq. (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq. 1 This case concerns Student, a [REDACTED] -year-old, who is classified by the New York City Department of Education (“DOE” or “District”) as a Preschool Student with a Disability.[2]
On May 23, 2023, the Parent filed a Due Process Complaint (“DPC”) against the DOE. [3] The Parent alleged that the Student needs a paraprofessional added to her Individualized Education Program (“IEP”) because the Student’s medical conditions cause an unbalanced gait, making the Student fall often and require her to be carried up and down the stairs while at school.[4] The Parent also alleged that a 1:1 paraprofessional is needed to assist with the Student’s behavior because the Student has a very short attention span, is self-directed, and needs to be constantly redirected in order to prevent undesired behaviors.[5]
On April 18, 2023, the Committee on Preschool Education (“CPSE”) convened to create an IEP for the Student.[6] The CPSE recommended a 12:1:2 full day special preschool class on a 12-month basis with related services consisting of speech-language therapy, occupational therapy, and physical therapy.[7] The IEP also provides for specialized transportation for the Student.[8] The implementation date on the IEP is the same date of the meeting, April 18, 2023.[9] The Parent disagreed with the program because the program did not include the assignment of a 1:[1] paraprofessional for the Student.[10] By way of relief, the Parent seeks an Order directing the DOE to assign a 1:1 paraprofessional to the Student for the 2023-2024 school year.[11]
As discussed below, I find that the DOE denied the Student a Free Appropriate Public Education (“FAPE”). I find that the IEP created for the Student on April 18, 2023 is not appropriate because it fails to include the assignment of a 1:1 health paraprofessional for the Student. I find that the evidence in the hearing record overwhelmingly supports a finding that the Student has a genetic disorder that causes complex medical conditions requiring the assignment of a 1:1 health paraprofessional throughout the school day and during transport to and from school.
PROCEDURAL HISTORY
On May 24, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On July 12, 2023, the parties appeared for a pre-hearing conference (“PHC”). The Parent indicated that she wanted to represent herself and she was accompanied by the Education Specialist.[12] During the PHC, the DOE Attorney indicated that the investigation to determine whether the case can be referred for settlement was still ongoing.[13] The DOE Attorney requested additional time for the investigation to be completed and for the DOE Attorney to reach out to the Resolution Case Manager to see if the case could be resolved through a resolution agreement.[14] At that time, the DOE Attorney requested an extension of the compliance date to allow for settlement negotiations.[15] The Parent consented to a fifteen-day extension for settlement negotiations, which I granted, and I scheduled a Status Conference (“SC”) for July 26, 2023.[16]
On July 26, 2023, both parties appeared for a SC. The Parent represented herself and was accompanied by the Education Specialist.[17] At that time, the parties indicated that there was a partial resolution agreement in this matter, however, the Parent asserted that the partial resolution agreement reached through mediation did not resolve all of the Parent’s claims and therefore, the Parent wanted to go forward to a Due Process Hearing (“DPH” or “hearing”).18 The parties jointly requested an extension of the compliance date to prepare for the upcoming hearing and to see if a full resolution in the matter could be reached which I granted, and the DPH was scheduled for August 18, 2023. [19]
A virtual DPH was held on August [18], 2023. It was a closed hearing. The Parent was present and represented herself.[20] The DOE Attorney was also present. Both parties gave opening statements.[21] The DOE Attorney sought to admit four exhibits into the hearing record without objection.[22] The DOE Attorney declined to call any witnesses at the hearing or give a closing statement.[23] The Parent sought to admit eight exhibits into the hearing record without objection and called two witnesses to testify live: the Behavior Technician and herself.24 The DOE cross-examined the Behavior Technician and the Parent, and I asked both witnesses a few clarifying questions.[25] The Parent gave a closing statement, and the record was closed on August 23, 2023 after receipt of the hearing transcript.[26]
The DOE took the position that although the DOE did not call any witnesses at the hearing, the DOE met its burden to show that the Student was provided with a FAPE through the documentary evidence admitted into the hearing record.[27] The DOE argued that the mediation agreement dated July [24], 2023, which resulted in a partial resolution agreement, resolved all of the claims in the Parent’s DPC related to the Student’s IEP for the 2023-2024 school year.[28]
The Parent took the position that the mediation agreement and the partial resolution agreement did not resolve all of her claims in the DPC because the Student needs a 1:1 paraprofessional for medical reasons which the partial resolution and mediation agreements do not provide.[29] The Parent argued that the agreements focused more on observing and evaluating the Student’s behavior and then determining what supports, if any, the Student may need to address her behavior.[30] Moreover, the Parent argued that while she is not opposed to assessing the Student’s behavior and that is why she agreed to the partial resolution and mediation agreements, the Student needs a 1:1 paraprofessional due to the Student’s medical conditions detailed in the documentary evidence admitted into the hearing record.[31]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is [REDACTED] years old and is classified as a Preschool Student With a Disability.[32] The Student was born with a cleft palate and at two days old, prior to discharge from the hospital, the Student was brought to the NICU due to significant weight loss due to feeding difficulties.[33] As an infant, hearing loss was suspected and the Student was seen by an Audiologist who detected profound hearing loss in her left ear causing the Student to begin wearing a hearing aid at four months old.[34] When the Student was ten months old, she had surgery to repair the cleft palate and tubes were placed in her ears.[35] On December 21, 2020, when the Student was fifteen months old, the Student was evaluated by the Geneticist and the Parent chose to proceed with genetic testing, which occurred on December 28, 2020.[36] As a result of the genetic testing, the Student was diagnosed with CHARGE Syndrome as her test results “identified a pathogenic variant in the CHD7 gene, consistent with a diagnosis of CHARGE Syndrome.[37] CHARGE syndrome is “an autosomal dominant disorder characterized by a specific set of birth defects.”[38] Specifically, CHARGE Syndrome is an acronym that stands for Coloboma of the eye, Heart defects, Atresia choanae, Retardation of growth and/or development, Genital anomalies, Ear anomalies (including hearing loss).[39] In addition, individuals with CHARGE Syndrome may also have cleft lip or palate and seizures among other medical conditions.[40] Some individuals with CHARGE syndrome have also been diagnosed with autism spectrum disorder.[41]
In the Student’s case, the Student has numerous conditions associated with CHARGE syndrome, including hearing loss with missing semicircular canals and left cochlear nerve, developmental delays including a speech-language impairment, an unbalanced gait, febrile seizures, and a congenital heart defect.[42] The Student is also diagnosed with autism spectrum disorder.[43] When the Student was approximately two years old, she collapsed one day and required a cardiac catheterization at the Medical Center which showed that she needed a vascular plug to correct the heart defect that caused blood to go to one side of her heart more than the other which prompted the fainting spell.[44]
In addition to the heart defect requiring surgery, the Student is under the care of the Comprehensive Pediatric Hearing Team at the Medical Center due to her complex inner ear conditions and hearing loss.[45] The Comprehensive Pediatric Hearing Team is made up of several doctors and specialists including the Otologist/Neurotologist, Pediatric ENTs, the Audiologist, the Speech-Language Pathologist, and the Education Specialist.[46]
According to the Otologist/Neurotologist, the Student’s CHARGE Syndrome has caused developmental delays, dysphagia, mild obstructive sleep apnea, and hearing loss (profound hearing loss in the left ear and mild hearing loss in the right ear).[47] The Student underwent an “MRI showing absent left cochlear nerve and hypoplastic vestibule, right cochlear hypoplasia with present cochlear nerve, [and] absent semicircular canals.”[48] As a result, the Student has difficulty with “balance, stability, awareness/navigation of surroundings, engagement and participation during school-based activities and overall safety.”[49] When the Otologist/Neurotologist examined the Student, the Student demonstrated a wide stance with an unstable gait causing her to fall, especially when she is distracted and/or when trying to walk fast.[50] The Otologist/Neurotologist recommends that the Student be assigned a 1:1 paraprofessional. [51]
In addition, the Student was recently examined by the Audiologist for a hearing evaluation.[52] The Audiologist reports that the Student has global developmental delays and profound sensorineural hearing loss in her left ear and slight to moderate conductive hearing loss in the right ear.[53] The medical records from the Audiologist also note the MRI results discussed above explaining that the Student is missing semicircular canals and her left cochlear nerve.[54] The Audiologist observed the Student walking with an unsteady gait.[55] The Student was “off-balance at times and she fell several times during the session. Additionally, it was noted that she did not look at the step when existing the audio booth and just stepped off and almost fell.”[56]
In April of 2023, the Education Specialist conducted a classroom observation of the Student and the report explains how the Student’s disabilities affect her in school.[57] For example, during the Student’s occupational therapy session, the Student’s occupational therapist informed the Education Specialist that she has some concerns about the Student’s movements as she observed her moving fast, but not cautiously.[58] In addition, the Student was observed during her physical therapy session and the Student needed help navigating a small staircase and walking down the hallway. The Student needed reminders to hold onto the banister for assistance and the Student did not look down or use caution while taking the stairs.[59] The Education Specialist’s report notes that the Student’s “balance is concerning. This was observed during all parts of her day and expressed by her therapists and teacher. [The Student] requires a 1 to 1 to assist with navigating the classroom, hallways/stairs, [and] times of transition.”[60] The Education Specialist also found that the Student’s “hearing loss reduces the ability for her to benefit from incidental language learning, which is how most vocabulary and social behaviors are learned.”[61] According to the Education Specialist, even though the Student wears “hearing devices, hearing loss still causes a barrier to accessing teacher instruction and peer-to-peer communication.”[62] The Education Specialist maintains that the Student requires a 1:1 paraprofessional throughout the school day and during transport to and from school.[63]
In addition to the doctors and specialists the Student sees through the Comprehensive Pediatric Hearing Team at the Medical Center, the Student is under the care of a Rehabilitation Specialist and a Pediatric Neurologist. The Rehabilitation Specialist treats the Student “for developmental delay, hypotonia, and gait abnormality.”[64] The Rehabilitation Specialist has found that the Student has “impaired balance and is at risk for falls and because of that she requires one to one paraprofessional assistance at school.”[65] Moreover, the Pediatric Neurologist treats the Student for Autism, febrile seizures, developmental delay, and CHARGE Syndrome.[66] The Pediatric Neurologist found that the Student’s medical conditions cause gait abnormality, hyperactivity and elopement risk, risk for seizures, risk for injury, and language impairment.[67] Therefore, the Pediatric Neurologist maintains that when the Student is transported to and from school, she requires an assigned “matron” for supervision.[68]
In addition, the Student receives Applied Behavior Analysis (“ABA”) therapy at home by the Behavior Technician.[69] The Behavior Technician works for the ABA Service Provider and has been providing ABA therapy to the Student for fifteen hours per week since December of 2022.[70] During the time the Behavior Technician works with the Student, she has observed the Student fall repeatedly.[71] Often, the Behavior Technician takes the Student into the community and has observed the Student’s balance as “a little off” causing the Student to fall easily.[72] The Behavior Technician testified that when the Student is up and walking around, she falls at least once every ten minutes, which makes the Behavior Technician be extra vigilant to protect the Student’s safety.[73]
The Parent testified that while the Student falls at home, the Student’s balance became more of a concern when the Parent brought the Student for an interview at a new school and the Student “needed someone to hold her hand, because she wouldn’t always pay attention to the steps in front of her. And on multiple occasions… going up and down the stairs, she did slip and if someone wasn’t holding her, she would have fell.”[74] The Parent was surprised that no one in her current Public School previously expressed concerns about the Student’s balance and when she spoke to the teacher at the Public School, the teacher told the Parent that normally, the Student has to be carried up and down the stairs or someone has to hold the Student’s hand.[75] In addition, the Parent testified that she started receiving phone calls from the Public School about the Student falling and upon further inquiry, the Public School personnel informed the Parent that the Student was falling in classroom and could not maneuver stairs independently.[76] The Student’s “feet are turned inward” and her “knees are a little bent” and the Student has low muscle tone.[77] While the Student is prescribed braces, she refuses to wear them.[78] In addition, the Student is missing “whatever part of our ears that helps us balance.”[79] The Parent testified that while she did enter into a mediation and partial resolution agreements with the DOE, to her understanding, her request to assign a 1:1 paraprofessional to the Student was not resolved.[80] Instead, according to the agreements, the DOE will conduct a Functional Behavior Assessment (“FBA”) and create a Behavior Intervention Plan (“BIP”) and then touch base with the Parent in six to eight weeks to determine what additional behavior supports the Student needs, if any.[81] However, the Parent asserts that the Student needs a 1:1 paraprofessional due to the Student’s medical issues, not solely due to her behavior.[82]
On April 18, 2023, the CPSE convened to create an IEP for the Student.[83] The CPSE recommended a 12:1:2 full day special preschool class on a 12-month basis with related services consisting of speech-language therapy, occupational therapy, and physical therapy.[84] The IEP also provides for specialized transportation for the Student.[85] The implementation date on the IEP is the same date of the meeting, April 18, 2023.[86] The IEP contains a medical alert indicating that that the Student has medical conditions and/or physical limitations which affect her behavior and participation in school activities.[87] The IEP details the Student’s medical conditions and in the Present Levels of Performance section, the IEP indicates that the Student “can walk upstairs with 1 hand on rail… but frequently requested other hand to be held as well.”[88] In addition, while the Student “can pick up a toy from the floor without falling… she frequently fell in the process” and she could not walk backwards, on her tip toes, or jump backwards or sideways.[89] The IEP details the Student’s “frequent loss of balance while walking and running” and “tightness in both heel cords.”[90] The IEP contains annual goals including improving the Student’s mobility and stability so that she can participate in activities more fully.[91]
On July 24, 2023, the Parent entered into a mediation and partial resolution agreements with the DOE.[92] According to the agreements, the DOE will conduct an FBA and BIP and “review recommendations as appropriate to support educational benefit.”[93] The partial resolution agreement also allows the Parent to submit “updated supporting documents for consideration of a 1:1 paraprofessional on the bus and at school for mobility and safety (behavior).”[94] The mediation agreement indicates that all parties agree the FBA and BIP will take six to eight weeks to complete and then the parties will reconvene for an IEP meeting on October 4, 2023 to review the assessment results. [95]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the Parent’s request that the DOE assign a 1:1 paraprofessional to the Student for the 2023-2024 school year. The Parent argues that the Student has complex medical conditions that cause an unbalanced gait and the need for a 1:1 paraprofessional.[96] The Parent alleges that the April 18, 2023 does not mandate a 1:1 paraprofessional for the Student and therefore, the DOE has failed to provide the Student with a FAPE for the 2023-2024 school year.[97] The DOE’s position is that all of the claims in the Parent’s DPC were resolved through the mediation and partial resolution agreements dated July 24, 2023, and the DOE did provide a FAPE to the Student.[98] The Parent disagrees that the mediation and partial resolution agreements resolved all of her claims because the Student needs a 1:1 paraprofessional for medical reasons which the partial resolution and mediation agreements do not provide.[99] The Parent argued that the agreements focused more on observing and evaluating the Student’s behavior and then determining what supports, if any, the Student may need to address her behavior.[100]
In this matter, I must determine a threshold issue of whether the Parent’s claims in the DPC have been fully resolved by the mediation and partial resolution agreements. I find that the mediation and partial resolution agreements do not resolve all of the Parent’s claims, and therefore, the Parent can seek relief through a hearing to determine whether the Student was provided a FAPE and whether adding the supportive service of a 1:1 paraprofessional for the Student is an appropriate remedy in this matter. Primarily, the partial resolution agreement clearly states that the agreement is a “partial settlement of claims contained in the impartial hearing request.”[101] In addition, the terms of the partial resolution and mediation agreements detail a plan to assess the Student’s behavior through an FBA and BIP and then reconvene an IEP meeting in October of 2023 to review the results.[102] While the partial resolution agreement allows the Parent to submit additional documents for the consideration of a 1:1 paraprofessional, it specifically indicates a behavior paraprofessional for mobility and safety and does not address the need for a 1:1 health paraprofessional.[103] The hearing record demonstrates that the Parent seeks a 1:1 health paraprofessional due to the Student’s numerous complex medical conditions, and I find that the Parent’s claim has not been resolved through the partial resolution and mediation agreements.
The next inquiry here is whether the DOE provided a FAPE to the Student through the April 18, 2023 IEP. The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[104] 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.[105] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[106] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.[107] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[108] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[109] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,110 (2) provide for the utilization of sufficient special education programs or services,[111] and then (3) the IEP must be properly and timely implemented.[112] In addition, under the IDEA, a 1:1 paraprofessional is considered a related service (other supportive service) that may be required to assist a student with a disability to benefit from his or her special education program.[113]
In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.[114] In this case, the Parent is seeking the assignment of a 1:1 paraprofessional as a supportive service for the Student.[115] As this case does not involve a unilateral placement, the burden falls entirely on the DOE.[116]
Here, I find that the DOE failed to meet its burden of showing the Student was provided a FAPE. While the DOE submitted documentary evidence into the hearing record, a review of same offers very little explanation as to how the CPSE made its recommendation or whether the IEP is meaningfully calculated to confer educational benefit and meet the Student’s needs in light of her complex medical conditions. In short, the DOE did not “offer a cogent and responsive explanation
110 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). for their decisions” in creating the April 18, 2023 IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[117] The DOE did not present any witness testimony for the purpose of establishing that it provided the Student a FAPE and because the documentary evidence provided without supporting testimony, could not rebut the Parent’s allegations that a 1:1 paraprofessional is a necessary supportive service for the Student to access her special education program, I must find that the DOE failed to offer the Student a FAPE for the 12-month 2023-2024 school year.[118]
Moreover, regardless of whether the DOE presented any witnesses at the hearing, a review of the documentary evidence admitted into the hearing record supports a finding that the DOE did not provide the Student with a FAPE because the April 18, 2023 IEP does not include a 1:1 health paraprofessional despite the recommendations of several doctors and other professionals familiar with the Student’s disabilities. The hearing record shows that the Student has numerous complex medical conditions including but not limited to 1) CHARGE Syndrome, 2) febrile seizures, 3) heart defect, 4) profound hearing loss, 5) autism spectrum disorder, 6) speech-language impairment, 7) low muscle tone, 8) development delays and 9) the Student is missing semicircular canals and her cochlear nerve which affects her balance and causes an unsteady gait.[119]
In addition, the hearing record shows that the Student is under the care of the Comprehensive Pediatric Hearing Team at the Medical Center and the Student sees several doctors including the Otologist/Neurotologist, the Audiologist, the Rehabilitation Specialist, and the Pediatric Neurologist.[120] When the Otologist/Neurotologist examined the Student, the Student demonstrated a wide stance with an unstable gait causing her to fall, especially when she is distracted and/or when trying to walk fast.[121] The Otologist/Neurotologist recommends that the Student be assigned a 1:1 paraprofessional.[122] Moreover, the Audiologist observed the Student walking with an unsteady gait.[123] The Student was “off-balance at times and she fell several times during the session and it was noted that the Student did not look at the step when existing the audio booth and just stepped off and almost fell.”[124] Likewise, the Rehabilitation Specialist has found that the Student has “impaired balance and is at risk for falls and because of that she requires one to one paraprofessional assistance at school.”[125] The Pediatric Neurologist also found that the Student’s medical conditions cause gait abnormality, hyperactivity and elopement risk, risk for seizures, risk for injury, and language impairment.[126] Therefore, the Pediatric Neurologist maintains that when the Student is transported to and from school, she requires an assigned “matron” for supervision.[127]
In addition, according to the Education Specialist who conducted a classroom observation of the Student, the Student’s “balance is concerning. This was observed during all parts her day and expressed by her therapists and teacher. [The Student] requires a 1 to 1 to assist with navigating the classroom, hallways/stairs, [and] times of transition.”[128] The Education Specialist also found that the Student’s “hearing loss reduces the ability for her to benefit from incidental language learning, which is how most vocabulary and social behaviors are learned.”[129] According to the Education Specialist, even though the Student wears “hearing devices, hearing loss still causes a barrier to accessing teacher instruction and peer-to-peer communication.”[130] The Education Specialist maintains that the Student requires a 1:1 paraprofessional throughout the school day and during transport to and from school to allow her to access her special education program and confer educational benefit.[131]
Lastly, the testimony of the Behavior Technician also supports a finding that the Student requires a 1:1 health paraprofessional at school and on the bus. During the time the Behavior Technician works with the Student, she has observed the Student fall repeatedly.[132] The Behavior Technician testified that when the Student is up and walking around, she falls at least once every ten minutes, which makes the Behavior Technician be extra vigilant to protect the Student’s safety.[133]
Overall, the hearing record strongly supports the Parent’s claim that the Student needs a 1:1 paraprofessional and the designation most in line with the Student’s needs is a health paraprofessional. While the IEP itself describes the Student’s medical history and has some descriptions of the Student’s mobility and stability difficulties resulting in her falling or being unable to go up and down stairs without assistance, there is nothing in the IEP or in the documentary evidence submitted by the DOE to show that a 1:1 health paraprofessional was considered for the Student and why the CPSE determined it was not a necessary supportive service to meet the Student’s needs and allow her to access a meaningful education. There is no evidence regarding what the CPSE reviewed and relied upon in making the determination to not include a 1:1 paraprofessional for the Student or if the support service was even considered.
New York State regulation includes as a special factor an IEP team’s consideration of 1:1 paraprofessional services to meet the individualized needs of a student with a disability.[134] The IEP team must consider a number of factors before recommending a 1:1 paraprofessional on a student's IEP, including but not limited to the student's goals and management needs, the specific support the 1:1 paraprofessional would provide, other supports or accommodations that could meet the student's needs, how long and under what circumstances the student needs the paraprofessional, staffing ratios in the classroom, any potential harmful effect of having a 1:1 paraprofessional, and training and support that will be provided to help the paraprofessional understand and address the student's needs. [135]
Moreover, according to the DOE’s Special Education Standard Operating Procedures Manual (“SOPM”), a 1:1 paraprofessional must serve one of the following functions: 1) Behavior Support, 2) Health, 3) Toileting, 4) Orientation and Mobility for visual impaired students.[136] According to the SOPM, a Health Paraprofessional “may be recommended when a student’s medical or functional status… prevent[s] the student from participating and benefitting from school-based activities with less intensive supports, including school-based nurses, related service providers and programmatic paraprofessionals.”[137] In addition, “[a] 1:1 health paraprofessional may also be recommended to monitor the student for specific signs and symptoms related to the student’s health or medical condition.”[138]
In this case, there is no evidence in the hearing record that the CPSE discussed and considered any of these factors and/or why the CPSE determined that the April 18, 2023 IEP should not include a 1:1 health paraprofessional for the Student. I find that it should. I find that the Student’s 12:1:2 special education program with related services does not provide enough 1:1 support for the Student in light of her complex medical conditions. Here, the evidence in the hearing record shows that the Student is limited from participating in and benefitting from school-based activities because of her disabilities. The Education Specialist’s classroom observation shows the difficulties the Student has navigating the stairs and participating in the classroom and in her related services due to her unbalanced gait and tendency to fall.[139] The IEP itself indicates the Student has medical conditions and/or physical limitations which affect her participation in school activities.[140] The Education Specialist, Otologist/Neurotologist, Rehabilitation Specialist, and the Pediatric Neurologist all recommend the assignment of a 1:1 paraprofessional.[141] The hearing record shows that a paraprofessional could help the Student participate and benefit from school-based activities by providing the Student with mobility assistance while navigating the Public School and during transportation and to monitor the Student’s health overall in light of her CHARGE Syndrome, hearing loss (and use of hearing devices), febrile seizures, heart defect, low muscle tone, and autism spectrum disorder.
Therefore, I find that in this case, the assignment of a 1:1 health paraprofessional is a crucial component to ensuring that the IEP is meaningfully calculated to confer educational benefit and meet the Student’s needs in light of her complex medical conditions. While the DOE shall provide a full-time 1:1 health paraprofessional to the Student immediately while at school and during transport to and from school, nothing in the Order below shall prevent the DOE from implementing the mediation and partial resolution agreements and completing the FBA and BIP for the Student.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the New York City Department of Education shall assign a full-time 1:1 Supplementary School Personnel (1:1 Health Paraprofessional) to the Student for the 2023-2024 school year during the entire school day and during transport to and from school commencing immediately. The designation of the paraprofessional shall be health unless otherwise agreed to by the parties.
2. ORDERED that the New York City Department of Education’s CPSE shall reconvene immediately and amend the Student’s IEP to be consistent with this Order.
3. ORDERED that the New York City Department of Education shall immediately assign an individual from its Impartial Hearing Order Implementation Unit to serve as a contact person for the Parent regarding the implementation of this Order. The Impartial Hearing Order Implementation Unit contact person shall provide their name, direct phone number, and email address to the Parent, and the contact person shall respond to any inquiry by the Parent concerning the implementation of this Order within 2 business days.
SO ORDERED.
DATED: September 5, 2023
Robin Levin, Esq.
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.
APPENDIX A –EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Genetic Test Report 12/28/2020 9 pages
B. Genetics Medical Records 5/11/2021 6 pages
C. IEP 4/18/2023 16 pages
D. Classroom Observation 4/23/2023 4 pages
E. Ontology/Neurology Medical Letter 6/9/2023 1 page
F. Audiology Report 7/21/2023 5 pages
G. Rehabilitation Medical Letter 7/30/2023 1 page
H. Medical Accommodation Neurology 8/8/2023 3 pages
DOE EXHIBITS
1. Individualized Education Program (IEP) 4/18/2023 16 pages DOE
2. Due Process Complaint 5/23/2023 3 pages DOE
3. Partial Resolution Agreement 7/24/2023 2 pages DOE
4. Mediation Agreement 7/24/2023 1 page DOE
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parent’s Exhibits, numbered designations for DOE’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent’s Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing as needed.
[2] Ex. C-1.
[3] Ex. 2.
[4] Ex. 2-1. The term "paraprofessional" was used throughout the hearing and will be used throughout this decision. In this case, "paraprofessional" means "supplementary school personnel" and "aide" which are the terms set forth in State regulation (see 8 N.Y.C.R.R. 80-5.6, 200.1(hh); 200.49d)(3)(vii); See also "'Supplementary School Personnel' Replaces the Term 'Paraprofessional' in Part 200 of the Regulations of the Commissioner of Education," at p. 1, VESID Mem. (Aug. 2004), available at http://www.p12.nysed.gov/specialed/publications/ policy/suppschpersonnel.pdf).
[5] Ex. 2.
[6] Ex. C.
[7] Ex. C-13.
[8] Ex. C-16.
[9] Ex. C-3.
[10] Ex. 2.
[11] Id.
[12] PHC Tr. 3-4.
[13] PHC Tr. 6.
[14] Id.
[15] PHC Tr. 11.
[16] PHC Tr. 11-15; See Order of Extension 1.
[17] SC Tr. 22.
[18] SC Tr. 23-26.
[19] SC Tr. 32, 41-44; See Order of Extension 2.
[20] DPH Tr. 57-58.
[21] DPH Tr. 60-61.
[22] DPH Tr. 65-66. While initially the Parent did object to Exhibit 2, the DPC, coming into evidence, upon clarification, the Parent did not have an objection to the document being part of the hearing record. Instead, she disagreed with the DOE Attorney’s assertion in his opening statement that the mediation agreement resolved all the issues in the DPC. The Parent argued that she believed she can “have two things going on at the same time,” meaning that she could enter into a partial resolution agreement through mediation with the DOE while also proceeding to a hearing to seek relief for the claims not covered by the partial resolution or mediation agreements. (See DPH Tr. 63).
[23] DPH Tr. 68, 103.
[24] DPH Tr. 70-74, 80-86.
[25] DPH Tr. 74-79, 86-102.
[26] DPH Tr. 103-104.
[27] DPH Tr. 60-61, 68, 103.
[28] DPH Tr. 60-61.
[29] DPH Tr. 61, 63, 80-104.
[30] Id.
[31] Id.
[32] Ex. C.
[33] DPH Tr. 80-104; Ex. B-1; Ex. C-3.
[34] Ex. C-3. DPH Tr. 88.
[35] Id.
[36] Ex. A; Ex. B.
[37] Id. DPH Tr. 80-81.
[38] Ex. A-3.
[39] Ex. A; Ex. B-2; Ex. E; Ex. G.
[40] Ex. A.-3; Ex. B-2-3.
[41] Id.
[42] Ex. A-H.
[43] Ex. C; Ex. D; Ex. H.
[44] Ex. C-3. DPH Tr. 81.
[45] Ex. E.
[46] Id.
[47] Id. The Otologist/Neurotologist has a MD and is the Chief of the Division of Otology/Neurotology at the Medical Center.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
[52] Ex. F.
[53] Ex. F-2.
[54] Id.
[55] Id.
[56] Id.
[57] Ex. D. The Education Specialist has a master’s degree in Education and works for the Medical Center.
[58] Ex. D-2.
[59] Id.
[60] Id.
[61] Id.
[62] Id.
[63] Ex. D-3.
[64] Ex. G; Ex. H. The Rehabilitation Specialist has a MD and works at the Medical Center’s Rehabilitation Medicine Division. The Pediatric Neurologist has a MD and is a Professor of Clinical Pediatric Neurology at the Medical Center.
[65] Ex. G.
[66] Ex. H.
[67] Id.
[68] Id.
[69] DPH Tr. 72-73.
[70] DPH Tr. 75-77.
[71] DPH Tr. 72-77.
[72] Id.
[73] Id.
[74] DPH Tr. 83.
[75] DPH Tr. 84.
[76] DPH Tr. 85.
[77] DPH Tr. 85-98.
[78] DPH Tr. 86.
[79] DPH Tr. 88.
[80] DPH Tr. 94.
[81] DPH Tr. 93-98.
[82] DPH Tr. 85-98.
[83] Ex. C.
[84] Ex. C-13.
[85] Ex. C-16.
[86] Ex. C-3.
[87] Ex. C-1.
[88] Ex. C-4.
[89] Id.
[90] Id.
[91] Ex C-9-10.
[92] Ex. 3; Ex. 4.
[93] Id.
[94] Ex. 3-2.
[95] Ex. 4.
[96] Ex. A-H; Ex. 2.
[97] Ex. 2.
[98] DPH Tr. 60-61; Ex. 3; Ex. 4.
[99] DPH Tr. 61, 63, 80-104.
[100] Id.
[101] Ex. 3-2.
[102] Ex. 3; Ex. 4.
[103] Ex. 3-2.
[104] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[105] 34 C.F.R. §300.13.
[106] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[107] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[108] Endrew F.,137 S.Ct. 988, 999.
[109] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[111] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[112] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[113] 34 C.F.R. § 300.34.
[114] NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[115] Ex. 2.
[116] NY Educ. Law § 4404(1)(c).
[117] Endrew F., 137 S.Ct. at 1002.
[118] While I find that the April 18, 2023 IEP has an implementation date of the same, and therefore, the DOE denied the Student a FAPE since that date by not providing the Student with a 1:1 health paraprofessional, the Parent only seeks relief for the current 2023-2024 school year.
[119] Ex. A-H.
[120] Id.
[121] Ex. E.
[122] Id.
[123] Ex. F.
[124] Id.
[125] Ex. G.
[126] Ex. H.
[127] Id.
[128] Ex. D.
[129] Id.
[130] Id.
[131] Ex. D-3.
[132] DPH Tr. 72-77.
[133] Id.
[134] 8 N.Y.C.R.R. 200.4(d)(3)(vii); 20 U.S.C. § 1414(d)(3)(B); 34 C.F.R. 300.324(a)(2).
[135] 8 N.Y.C.R.R. 200.4(d)(3)(vii).
[136] Standard Operating Procedures Manual (SOPM), Pages 63-64, November 16, 2021 available at Special Education Standard Operating Procedures Manual (nyced.org)
[137] Id.
[138] Id.
[139] Ex. D.
[140] Ex. C-1.
[141] Ex. D; Ex. E; Ex. G; Ex. H.