New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 601217 - NYC: 249208

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/10/23

For the Student:

[REDACTED] (“Parent Counsel”), [REDACTED] (“Treatment Team Leader”)

For the Department of Education:

[REDACTED] (“DOE Representative”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Grandmother’s ^[2]

Due Process Complaint (“DPC") filed on June 22, 2023. (Ex. A).^[3] In the DPC, Grandmother alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act of 1973 (“504”) for the 2023-24 school year. (Ex. A). Grandmother is seeking an order for the committee on special education (“CSE”) to immediately reconvene and amend the student’s individualized education program (“IEP”) to include a recommendation for a therapeutic residential program. (Ex. A-3-4). ^[4]

I was appointed on June 26, 2023. On July 24, the parties appeared virtually for a pre-hearing conference (“PHC”). At the PHC, the DOE conceded the student’s eligibility under both the IDEA and

504. (See PHC Transcript).^[5] A hearing date was set at the PHC. (Id.). A virtual due process hearing (“DPH”) was held on August 10, 2023. It was a closed hearing. Grandmother was not present but was represented by Parent Counsel. The DOE Representative was also present. At the DPH, the DOE offered one exhibit that was not admitted^[6] and presented no witnesses. (Tr. 16-17). Parent Counsel entered into evidence eight exhibits (A-H) without objection. (Tr. 18-19). Parent Counsel presented testimony from two witnesses at the hearing: Grandmother (whose testimony was admitted in affidavit form 7) and Treatment Team Leader.^[8] Both parties waived opening statements and closing arguments^[9] were made on the record. (Tr. 37-39). The record was closed on August 15, upon receipt of the hearing transcript.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York

7 Neither the DOE Representative nor the IHO had additional questions for Grandmother, so she did not appear for live testimony. (Tr. 17-18). State Education Law, Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504, 10 29 U.S.C. §794(a).

BACKGROUND

The student is currently [REDACTED] and classified as a student with Other Health Impairment (“OHI”). (Ex. A-1; F-1). The student has been medically diagnosed with Generalized Anxiety Disorder, Attention Deficit Hyperactivity Disorder (“ADHD”), Specific Learning Disorders with Impairment in Math and Written Expression, and Post-Traumatic Stress Disorder (“PTSD”). (Ex. A-1; F-4). On May 3, 2023, another IHO issued a findings of fact and decision (“FOFD”) compelling the CSE to immediately convene and consider recommending the student for a non-public school (“NPS”) program. (Ex. A-3). ^[11] On June 6, 2023, the DOE convened a meeting of the CSE and developed an IEP for the student for the 2023-24 12-month school year. (Ex. A-3; F-30, 34). Despite Grandmother and the student’s treatment team’s requests for a residential NPS placement, the 6/6/23 IEP recommended placement in an NPS day program instead. (Ex. A-3; B-2; F-29). Grandmother contends that “the CSE was unwilling to consider” a residential placement (Ex. A-3), but, according to the district, it was considered but rejected “as being too restrictive” (Ex. B-2; F-36). Additional counseling sessions and counselor access were added to the recommended program to accommodate Grandmother’s concerns for the student’s emotional health. (Ex. F-36). The 6/6/23 IEP recommended an 8:1+1 special class^[12] in an approved NPS for 35 periods per week, plus counseling (“CO”) (3x40x1 and 2x40 in a group of three), occupational therapy (“OT”) (1x40x1), and a full-time behavior management/support plan on a 12-month basis. (Ex. F-29-30).

The student was transferred to New York City Children’s Center (“[REDACTED]”) hospital for long term inpatient care in April^[13] of 2023. (Ex. A-3). He was discharged on August 4, 2023. (Tr. 26). As of the date of the hearing, it appeared that the DOE had not proposed a school location to implement the 6/6/23 IEP. ^[14]

ISSUES

Grandmother alleges a number of substantive and procedural deficiencies that resulted in a denial of a FAPE (under the IDEA and 504) for the 2023-24 school year. (Ex. A).^[15] Grandmother

10 The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf. asserts that placement in a therapeutic residential program is the appropriate placement and leastrestrictive environment (“LRE”) for the student for the school year at issue. (Ex. A-3-4; H-3). The relevant issues here are whether there was a denial of a FAPE and, if so, what the appropriate remedy for that denial should be. Since Grandmother is requesting an order for the IEP to recommend a residential placement, the decision regarding the appropriate remedy necessarily includes analysis of the student’s LRE.

FINDINGS OF FACT 16

While it is clear from the record that this student struggles with behavior regulation and sensory processing (Ex. A-1), there is limited information in the record regarding the specifics of those issues, whether they occur in all settings, and/or what circumstances may trigger the student’s negative behavioral responses. Despite the fact that the student’s issues are primarily emotional and behavioral, the record contains no psychiatric evaluation or functional behavior assessment (“FBA”). It appears that the student’s last neuropsychological evaluation was in June of 2021 (“Neuropsychological”), some of the results of which are quoted in the 6/6/23 IEP. (Ex. F-1-4).^[17] The student’s overall cognitive functioning is in the high average range. (Ex. F-1, 3). At the time of the Neuropsychological, the student was exhibiting low average to average math abilities and appropriate reading, decoding, and reading comprehension (when able to refer back to passages) abilities. (Ex. F-3). However, his abilities were below grade level in reading accuracy, fluency, and higher-level reading comprehension (when unable to refer back to passages). (Ex. F-3). Additionally, it was noted that the student “has always, and continues to present with deficits in self-regulation, executive functioning, and emotional and behavioral regulation, which all impact his learning, functioning within a classroom and social-emotional development, and have warranted a small, therapeutic special education program.” (Ex. F-4). The student’s social-emotional development has “presented as the most crucial in his educational plan.” (Ex. F-4). The student takes medication for “focusing, regulation, impulse control, and controlling tics.” (Ex. F-8).

According to the Neuropsychological, as quoted in the IEP, the student “requires learning at a slower pace in order to fully grasp content and to make progress. He requires extra time to consolidate information and cues to enhance retrieval. ... He requires a structured plan to approach a task or a framework with which to learn novel material with teacher check-ins.” (Ex. F-3). In the opinion of the Neuropsychological evaluator, the student needs “a highly specialized, full-time, small special education class within a full-time special education school in order to make progress and prevent regression.” (Ex. F-4). It goes on to say that “[i]n consideration of the continuum of programs and placements through the DOE, it is clear that any Community placement would not work. Access to typical peers in a community school would only increase his anxiety and attention deficits, as well as decrease his self-esteem. [The student] is not ready. Therefore, a deferral to CBST is recommended and is critical for his progress in which covers the 2023-24 12-month school year. (Id.). Parent Counsel has affirmed that all 504 claims are subsumed by the IDEA. (See PHC Transcript).

16 Facts from the “Introduction and Procedural History” and “Background” sections above are incorporated here as well. this very crucial social and academic period of time. This is the least restrictive and appropriate placement for this child.” (Ex. F-4).

The student’s educational history includes both public and private schools. (Ex. A-1; H-1). The student attended pre-kindergarten at a therapeutic preschool, then transitioned into a public school in a 24:2:1 class. (Ex. C-1). Over the next few years, the student attended various therapeutic educational placements that did not meet his needs. (Ex. C-1). During the 2021-22 school year, the student was homeschooled. (Ex. A-2; H-2). At the start of the 2022-23 school year, the student attended a charter school in an integrated co-teaching (“ICT”) classroom. (Ex. A-2; H-2). During that placement, the student struggled to make friends and his tic-like behaviors^[18] resulted in teasing from his peers and were disruptive to the class. (Ex. A-2; H-2). The teasing led to bullying, threats, and eventually assault by a group of students. (Ex. A-2; H-2). By mid-October, the student was isolated in a 1:1 classroom for safety reasons (both his safety and that of others). (Ex. A-2; H-2). After a second assault in November the student became severely depressed and was removed from the school. (Ex. A-2; H-2). The student “was then admitted to a [REDACTED] Hospital day program on an outpatient basis.” (Ex. A-2; H-2). Although the DPC claims that “the program did not provide enough support” (Ex. A-2), and elsewhere in the record it states that the student needed a higher level of care (Ex. C-1), there is no explanation in the record explaining what supports were provide and what was lacking, nor does the record contain assertions that the student currently has that same level of need. In early April 2023, the student was admitted to Hospital’s inpatient unit. (Ex. A-2; H-3). Towards the end of April, the student was transferred to [REDACTED]’s inpatient unit, where he remained until August 4, 2023. (Ex. A-2-3; H-3).

At the June 6, 2023, CSE meeting, Grandmother was present along with Treatment Team Leader and the student’s primary therapist at [REDACTED] (“[REDACTED] Therapist”). (Ex. F-37). Attending for the district was a special education teacher and the district representative. (Ex. F-36). 19 In drafting the 6/6/23 IEP, the CSE considered the Neuropsychological,^[20] a social history from May 10, 2023,^[21] a vocational assessment from 6/1/23, 22 and a doctor letter (“Hospital Letter”) from April ^[19], 2023 (this is the only document considered by the CSE that appears in the hearing record) (Ex. B-2), as well as input from the people present at the meeting (Ex. F-6, 36). As noted above, the Neuropsychological did not recommend a residential placement. (Ex. F-4). The Hospital Letter stated that it was submitted at Grandmother’s request “to assist in advocating” for a CBST deferral for residential placement. (Ex. D-1). It went on to state that the student has a history of hospitalizations and outpatient treatment. (Ex. D-1). It then concluded that, based on the student’s behavioral needs, they “firmly recommend that [he] be considered for CBST deferment in order to meet his mental health,

22 This document is not in evidence. behavioral, and academic needs in [sic] therapeutic and structured setting.” (Ex. D-1). It did not specify that the ”therapeutic and structured setting” recommended was a residential one, nor did it state that the student’s needs could not be met in a less restrictive structured/therapeutic setting. My interpretation is that Grandmother asked them to write a letter recommending residential placement (thus the beginning referencing the letter being at her request, and their desire to assist her in advocating), but that in their clinical opinion, the most they were comfortable saying was that they were recommending a therapeutic/structured setting. No one from Hospital was present at the CSE meeting or testified at the hearing to clarify any other meaning.

While the DPC alleges that “[a]dditional letters from [the student’s] treating psychiatrist and therapist were also shared with the CSE” (Ex. A-2), it is not clear from the record what letters that might be or if they were received by the DOE. No additional letters were referenced in the PWN, nor does the record contain further information about additional letters^[23] or a confirmation of receipt. The only letter referenced in Grandmother’s affidavit was the Hospital Letter. (Ex. H-3). Accordingly, based on the record, it appears that the only recommendation letter in the record that was given to the DOE and considered by the CSE was the Hospital Letter.

Grandmother made clear at the CSE meeting that she wanted them to recommend a residential placement, and her concerns were noted in the IEP. (Ex. F-6, 36; Tr. 30-31).^[24] Grandmother reported to the CSE that she had not seen the student display aggression in over a year, and that he is “a kind student who gets along well with others.” (Ex. F-7).

In addition to the NPS placement, the IEP included myriad management needs, namely:

• Collaboration and coordination across the transdisciplinary team • Homogenous instructional grouping • Break out groups for small group or 1:1 instruction within the classroom • Small group work with a teacher when learning new more abstract material to best support understanding • Additional time to complete assignments, assessments or note taking • Additional wait time to process instructions • Chunking of material into smaller steps or units • Repeated readings • Familiarize [the student] with any new vocabulary before beginning the lesson • Support for planning and producing written responses • Verbally discussing thoughts prior to writing • Visual Aids / Graphic organizers / Semantic Maps / Checklists / Word Lists / Sentence starters • Revising and editing checklists • Assistance with developing a writing outline • Support in making revisions • Assistance with note taking • Copy of class notes • Number chart / Math Manipulatives / Math Reference Sheet / Multiplication chart • Reading/breaking down word problems • Provide examples and step-by-step notes for multi-step math problems • Providing examples of strong work samples • Directions repeated with the opportunity to repeat back directions to a teacher • Concrete examples, aids and manipulatives • Modeling • Scaffolding • Frequent opportunities for review and reinforcement of skills • Structured, multi-sensory lessons • Use of multisensory materials including processing charts, diagrams, hands on learning, three dimensional materials, and videos to support • multi-sensory needs for processing information • Sitting in close proximity to the teacher • Check-ins with teacher to ensure understanding • Check-ins with teacher for initiating a task • Check-ins with teacher for tracking assignments to completion • Access to school counselor or trusted adult as needed • Checks-ins with teacher to reduce anxiety • Modeling of coping strategies to reduce frustration or anxiety • Reminders to implement relaxation or coping strategies • Explicit strategy instruction to support executive functioning skills • Guidance on study skills, time management, planning and organization • Use of a daily or weekly planner or agenda to track assignments • Timeline to assist in work completion • Advance notice of assignments • Prompts and graphic organizers to support task initiation • Encouragement to ask for help and self-advocate academically • Breaking down tasks into more manageable components to promote sustained attention, comfort and effort in working toward task • completion to achieve success • Verbal and nonverbal redirections, cues, and prompts • Verbal prompts and cues to slow down and check over work before submission • Cue [the student] by calling name before asking questions • Frequent questioning to assist comprehension, engagement and attention • Reminders to slow down when working and to check work • Prompts to attend to important information • Reminders to write things down to aid in remembering • Periodic breaks and opportunities for movement • Access to a quiet space with minimal distractions • Frequent, specific praise for appropriate on-task behaviors and corrective, immediate feedback • Use of interactive activities and social reinforcers to increase engagement and participation • Positive reinforcement system for completing tasks • Highly structured opportunities to engage with others • Positive peer models • Assistance to facilitate social problem solving with peers • Open and constructive discussions about anticipating social events and possible actions/reactions • Breaking down interactions after-the-fact • Engage in explicit discussions about metacognition to understand reactions when interpreting the social context of a conversation • Direct verbal prompts to stay on topic and terminate or change a conversation topic when appropriate • Explicit teaching of positive classroom behaviors, e.g., raising hand, waiting for turn, full body listening, tracking the speaker, etc. • Verbal and/or written script for a specific situation when unable to formulate the sentence independently in order to ask for help, break or further explanation • Reminders to implement perspective taking • Immediate, ongoing feedback to student • Explicit behavioral expectations coupled with systematic reinforcements • Cue expected behavior • Model expected behavior by adults • Advance notice of transitions • Systematic behavior intervention plan • Data driven behavioral interventions • Chart progress and maintain data • Encourage parent participation and communication • Explicit behavioral expectations coupled with systematic reinforcements (Ex. F-8-11). The IEP additionally contained goals for organization, focus and attention, behavior, time management, emotional expression and regulation, social interaction, understanding and retention of texts, brainstorming, writing, multistep word problems, and mathematical operations. (Ex. F-13-28). Testing accommodations were also included. (Ex. F-13). ^[25] Although the DPC claims that the student’s “condition had worsened” between the prior FOFD in May and the CSE meeting in June “such that a residential school became necessary” (Ex. A-3), the record contains no information about how, specifically, his condition had worsened, nor does it contain results of any clinical testing done since the prior FOFD. The Treatment Team Leader testified that when the student was first admitted to [REDACTED] (in April) he was guarded and defensive and could become threatening when his demands were not met. (Tr. 27-29). However, as treatment went on, the student was able to engage more and develop relationships with the treatment team, was learning how to deal with attention from girls, and “did a much better job being able to control … his angry impulses.” (Tr. 28-29). Additionally, she testified that the student was discharged on August 4 because he was psychiatrically stable. (Tr. 32).

The only documentary evidence in the record that was created after the previous FOFD, besides the IEP itself, is the June 2nd recommendation letter from [REDACTED] (“June [REDACTED] Letter”) 26 and the July 13th recommendation letter from [REDACTED] (“July [REDACTED] Letter”). As discussed above, it does not appear from the record that the June [REDACTED] Letter was shared with or considered by the CSE, although two members of the [REDACTED] treatment team did participate in the meeting. (Ex. C-2; F-37). The July [REDACTED] Letter was not completed until after the June meeting, so it could not have been considered by the CSE. (Ex. E-1).

In terms of the need for a residential placement, Treatment Team Leader testified that Grandmother told the treatment team that she was “working – to get him into a residential school program” and they “thought that really would meet [the student’s] needs.” (Tr. 30). However, she was hesitant to testify that residential placement was the only type of placement that would meet the student’s needs. (Tr. 34). At no point did Treatment Team Leader say the student required a residential placement to attain educational benefit. To the contrary, based on her testimony, it seemed that Grandmother was predominantly driving that request. 27 Furthermore, it appeared that Treatment Team Leader was careful not to say the student requires residential placement, and instead used phrases like “could benefit from” (Tr. 31), or “could be successful in” (Tr. 34) a residential placement. Her avoidance of words like “need” or “requires” seemed deliberate. Treatment Team Leader and Grandmother both advocated for residential placement at the CSE meeting. (Tr. 30-31). However, I do not credit Grandmother’s assertion in her affidavit that Treatment Team Leader explained to the CSE why residential placement was the “appropriate least restrictive placement” for the student at this time. (Ex. H-3). 28 When I asked Treatment Team Leader about LRE at the hearing, she would not agree that residential placement was the least restrictive program in which the student could be successful. (Tr. 34). When pressed, the only aspects (common of residential treatment) she would say that the student needs are a multidisciplinary team, a treatment milieu, and continuity to help with transitions “from the day to the afternoon to the evening.” (Tr. 34-35). She did not say that it was impossible to get that kind of transitional help in a less restrictive setting. (Tr. 34-35).

The June [REDACTED] Letter did not recommend a residential placement but rather indicated only that they were “writing to support …consideration for Non-Public School Funding” and that “Placement in a structured educational setting with a high level of support and services would greatly benefit [the student].” (Ex. E-1). Similar to the testimony of Treatment Team Leader, the July [REDACTED] Letter merely stated that the student “would benefit from placement in a therapeutic educational environment in a residential school program;” it did not say that he requires such a placement. (Ex. C-1-2)(emphasis added). Based on the record, including both [REDACTED] Letters and Treatment Team Leader’s testimony, I find that although the student’s [REDACTED] treatment team believes that residential treatment would be helpful to the student, they do not necessarily believe that it

26 This letter is signed by the student’s [REDACTED] Therapist and psychiatrist (“[REDACTED] Psychiatrist”). (Ex. E-1). 27 The Grandmother’s desire for residential placement was emphasized when Treatment Team Leader spoke about the treatment team’s recommendation for residential placement (Tr. 30), it was also emphasized that at the CSE meeting Grandmother said multiple times “that she was really hoping for approval for a residential school placement” (Tr. 30-31). 28 I do not think that Grandmother was being deliberately deceiving in her affidavit, but rather that it may have been written by Parent Counsel and it’s possible that Grandmother did not fully understand the legal meaning of LRE. It is worth noting that the factual allegations in the DPC, written by Parent Counsel, match nearly verbatim the facts contained in Grandmother’s affidavit. (Compare Ex. A with H). is required for him to receive educational benefit, nor have they asserted that residential placement is his least restrictive environment.

LEGAL FRAMEWORK

IDEA

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. Id. 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." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], 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 [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)].

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 parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).

504

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a). Under 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. §104.33(b).

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. §104.3(j)(1). However, only students who have a substantial limitation of a major life activity have a separate entitlement to a FAPE under the statute. 29 U.S.C. §705(20)(B)(i); 42 U.S.C. §12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. §35.108(c)(1)(ii). Section 504 requires that districts re-evaluate a student periodically and before any significant change in placement. 34 C.F.R. §104.35(a) and (d).

There is conflicting authority regarding the standard for finding a violation of 504. In examining whether a district has failed to provide a FAPE under 504, the office of civil rights (“OCR”) considers whether: 1) the district evaluated the student per 504 requirements; 2) the student's needs were determined on an individual basis; and 3) the district provided related aids and services necessary to meet the student's individual needs. Mansfield (AR) Pub. Schs., 59 IDELR 265 (OCR 2012). However, case law shows that in order to support a violation of 504, the parent must show “bad faith” or “gross misjudgment” and not merely “errors in professional judgment.” Wenger v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 153 (N.D.N.Y. 1997) quoting Brantley v. Indep. Sch. Dist., 936 F.Supp 649, 657 (D. Minn. 1996); Zahran ex rel. Zahran v. N.Y. Dep’t of Educ., 306 F.Supp.2d 204, 213-14 (N.D.N.Y. 2004); Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F.Supp.2d 477, 484 (S.D.N.Y. 2007).

Least Restrictive Environment (LRE)

Each public agency must ensure that - (i) To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are nondisabled; and (ii) Special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 C.F.R §300.114(a)(2). The Second Circuit has adopted a 2-prong test for determining whether the district is meeting the IDEA’s LRE requirements, considering (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 161-67 (2d Cir. 2014)(applying Newington two-prong test); Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 119-20 (2d Cir. 2008).

First, in determining whether a child with disabilities can be educated satisfactorily in a regular class with supplemental aids and services, a court should consider several factors, including: (1) whether the school district has made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class, with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class. The Newington Court explained that the inquiry is individualized and fact specific, considering the nature of the student's condition and the school's particular efforts to accommodate it. 546 F.3d at 120. Second, if the court determines that the school district was justified in removing the child from the regular classroom and providing education in a segregated, special education class, the court must consider whether the school has included the child in school programs with nondisabled children to the maximum extent appropriate. Newington, 546 F.3d at 120. “Consideration is also given to any potential harmful effect on students or on the quality of services that they need.” Application of a Student with a Disability, Appeal No. 23-027, citing 34 C.F.R. §300.116(d); 8 N.Y.C.R.R. §200.4(d)(4)(ii)(c).

“[A] disabled student’s least restrictive environment refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available.” T.M., 752 F.3d at 161. “A ‘residential placement is, by its nature, considerably more restrictive than local extended day programming.’” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) quoting Carlisle Area School v. Scott P., 62 F.3d 520, 534 (3d Cir. 1995). “’[E]ven in cases in which mainstreaming is not a feasible alternative,’ the statutory preference for a least restrictive placement applies.” Id. quoting Sherri A.D. v. Kirby, 975 F.2d 193, 206 (5th Cir. 1992). New York law requires there be "no appropriate nonresidential school available consistent with the needs of the child" before a CSE may recommend a residential placement. NYS Educ. Law. §4402(2)(b)(2); see also C.T. v. Croton-Harmon Union Free Sch. Dist., 812 F.Supp.2d 420, 433 (S.D.N.Y. 2011). "While some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements.” Walczak, 142 F.3d at 132; see also S.H. ex rel. W.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523 (S.D.N.Y. 12/8/11)(upholding the SRO’s determination that a residential placement was not the LRE because the student had been making progress in the district’s recommended non-residential program). A residential placement is not appropriate simply because it may be better for the student and/or enable them to reach their full potential. Walczak, 142 F.3d at 132 (finding that the student could make appropriate progress in a day program); P.K. v. Bedford Cent. Sch. Dist., 569 F.2d 371 (S.D.N.Y. 2008)(“While a residential placement may have been the most effective way to treat P.K.'s substance-abuse problem, that treatment was not the District's responsibility” even where outside professionals had recommended it). Generally, “objective evidence of a child’s regression in a day program [is required] before finding a residential placement to be required by the IDEA.” Walczak, 142 F.3d at 131; see also Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1121 (2d Cir. 1997)(finding residential placement necessary where the student had regressed seriously in a day program the prior year and the student’s clinical evaluation concluded that the student’s “debilitating emotional problems could only be properly addressed in a highly structured residential setting”); C.N. v. Katonah Lewisboro Sch. Dist., 2020 WL 7496435 (S.D.N.Y. 12/21/20). The fact that all outside professionals may recommend a residential placement is not, by itself, sufficient to satisfy the LRE analysis. See C.N., 2020 WL 7496435 (while “every examiner” who saw the student “concluded that she needed a therapeutic boarding school, deference was still owed to the district’s trained educators); E.S. ex rel. B.S. v. Katonah-Lewisboro Sch. Dist., 742 F. Supp. 2d 417, 436 (S.D.N.Y. 2010), aff'd, 487 F. App'x 619 (2d Cir. 2012); M.N. v. Katonah-Lewisboro Sch. Dist., 2016 WL 4939559, at *57 (S.D.N.Y. 9/14/16); P.K., 569 F. Supp. 2d at 387; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *19 (S.D.N.Y. 3/29/13), aff'd, 554 Fed. App'x 56 (2d Cir. 2014); Yeger v. E. Ramapo Cent. Sch. Dist., 2022 WL 16745811 (S.D.N.Y. 11/7/22)(upholding the SRO’s determination that a residential placement was not the student’s LRE even where the student’s psychologist and private providers had recommended a residential placement). Section 504 also contains an LRE requirement. 34 C.F.R. §104.34(a); Marion County (TN) Sch. Dist., 109 LRP 32668 (OCR 06/05/08); Carroll County (GA) Sch. Dist., 12 ECLPR 44 (OCR 2014); Palm Springs (CA) Unified Sch. Dist., 61 IDELR 174 (OCR 2013); Rockingham County (VA) Pub. Schs., 79 IDELR 80 (OCR 2021). Although 504 does not use the term LRE, the relevant language in the statute is equivalent to the IDEA's LRE provision and has the same effect. Letter to Williams, 21 IDELR

73 (OSEP 1994).

Burdens

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Parents have the burden of proof for all 504 claims. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990).

Relief

A court may direct a school district to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); G.G. ex rel. Gersten V. Dist. of Columbia, 924 F. Supp. 2d 273 (D.D.C. 2013)(“‘the consideration of prospective placement is frustrated without’ an IEP and an accompanying determined placement . … Prospective placement . . . should thus not be addressed by this Court, but instead, by the . . . IEP team, as soon as practicable.”).

Under certain circumstances, an award of prospective relief in the form of IEP amendments and/or the prospective placement of a student in a particular type of program has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018)(noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 (E.D.N.Y. Oct. 30, 2008)(noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"). Concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 (S.D.N.Y. Aug. 17, 2022)(acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years); M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 (N.D.N.Y. Mar. 29, 2019)(declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief); Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012)(noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year); Application of a Student with a Disability, Appeal No. 23-010 (declining to award prospective placement where the school year at issue had already ended “and presumably the CSE had an opportunity to craft an IEP or IESP that met the student’s needs for the [following school year]).

While prospective placement might be appropriate in rare cases [see Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 (N.D.N.Y. Sept. 24, 1998)(noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate")], the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions. See, e.g., Application of a Student with a Disability, Appeal No. 19-

018. One of the rare instances where prospective placement is warranted is one where the school year has not yet ended, there is a clear consensus in the record as to the need for a certain type of program or service, and the district has repeatedly failed to make the necessary change. See Application of a Student with a Disability, Appeal No. 23-059.

ANALYSIS AND CONCLUSIONS OF LAW

FAPE

There is no dispute about the student’s eligibility for a special education program and services under both the IDEA and 504 here. The DOE has the burdens of production and persuasion as to the provision of a FAPE under the IDEA, and the parent has that burden under 504.

Regarding the provision of a FAPE under the IDEA, the DOE failed to meet its burden at the hearing. The DOE presented no witnesses to dispute Grandmother’s claims, they declined to make an opening statement, and they made no substantive arguments at the close of the hearing. Additionally, much of the evaluative material considered by the CSE does not appear in the record, so it is unclear whether they supported the recommended program or not. Furthermore, the DOE presented no cogent or responsive explanation for the decisions made in the IEP. For these reasons, the DOE has not sustained its burden and I find that they failed to offer the student a FAPE under the IDEA for the 2023-24 school year. ^[29]

Regarding the provision of a FAPE under 504, I find that Grandmother has also failed to meet her burden. While the DOE did not meet its burden at the hearing, that is not to say that the IEP was not reasonably calculated to meet the individual educational needs of the student as adequately as the needs of nonhandicapped persons are met. First, it is worth noting that Parent Counsel did not address 504 at all at the hearing. Furthermore, even if I were convinced that the program offered by the CSE was not appropriate (which will be discussed further below), I do not believe that the facts here support a violation of 504 under either the OCR or case law standard. Regarding the OCR standard, Grandmother has not alleged that the district failed to evaluate the student or that they failed to provide related aids and services necessary to meet the student’s individual needs. There is no allegation here that the related services in the student’s IEP were insufficient, nor has there been a request to modify those services. The main dispute here is a difference of opinion over whether the student’s NPS placement should be a day program or a residential program. Despite Grandmother’s claim to the contrary, the fact that the CSE members disagreed as to the least restrictive placement does not mean that the student’s needs were not determined on an individual basis (as discussed fully below). Moreover, there was evaluative material available to the CSE that supported their recommendation. Accordingly, at most, their placement recommendation was an error in judgment, and did not rise to the level of bad faith or gross misjudgment. For these reasons, on the record before me, I do not find a 504-violation based on a denial of a FAPE.

Least Restrictive Environment

As mentioned above, although the DOE did not meet its burden at the hearing, that does not mean that the 6/6/23 IEP was necessarily inappropriate. Although Grandmother and Treatment Team Leader recommended a residential placement at the CSE, there was other evaluative material available that supported the recommendation for an NPS day program. Additionally, Grandmother told the CSE that the student’s aggression had improved, which may have factored into the decision. Moreover, the CSE agreed to add additional counseling and mental health supports in response to Grandmother’s concerns. The IEP’s ultimate program and placement recommendations were consistent with the those of the Neuropsychological. They were also consistent with the Hospital Letter recommendation for a CBST deferment. Despite Grandmother’s claim to the contrary, I do not find that the CSE refused to consider a residential placement or denied Grandmother her right to participate.^[30] Both the IEP and the PWN reflect that her request for residential placement was considered but rejected because the CSE believed that it was not the student’s LRE. Additionally, as discussed in the facts section above, the “contrary” recommendations of the student’s treatment professionals were not really contrary to the recommended placement at all. While they varyingly/intermittently advocated for a residential placement, and/or stated that it would be helpful, their recommendations for a residential placement, specifically, were not couched in terms of the students needs.

While a residential placement may be helpful to a student, the district cannot recommend that extremely restrictive setting unless it also satisfies the LRE requirements. It is clear that the LRE requirement applies even where, as here, the parties agree that mainstreaming is not a feasible alternative.^[31] The law is clear that residential placement is a last resort, reserved only for those students who cannot be appropriately educated in a non-residential setting. ^[32]

The record before me does not establish that the student could not be educated in a nonresidential setting, nor does the record contain objective evidence of regression in a day program.^[33] At most, the record here contains vague, conclusory statements regarding the student’s previous failures in day programs, without more. Furthermore, as discussed above, there does not even appear to be a consensus among the student’s treatment professionals that he requires a residential placement. Even if there was such a consensus, that alone would not be sufficient to satisfy the LRE analysis.^[34] While the testimony offered at the hearing supported the idea that the student could/would benefit from a residential placement, such a restrictive placement is not appropriate simply because it may be best for the student or would allow him to reach his full potential.^[35] As noted previously, the record here does not contain any of the student’s evaluations, any psychiatric evaluation, or any objective recent data to support a change in the student’s needs between the last FOFD in May (ordering the CSE to consider placement in an NPS therapeutic day program) and now. Accordingly, while such evidence may exist, there is not enough evidence in the record before me to support the conclusion that a residential placement is the student’s LRE. Moreover, since I find that there was no clear consensus among the evaluative materials requiring the requested program, it would not be appropriate to order such prospective placement here. Thus, I do not find it appropriate to order the relief that Grandmother is seeking. ^[36]

Accordingly, the CSE shall immediately reconvene and consider all available evaluative material in determining the appropriate program recommendation for the student for the 2023-24 school year. They must meaningfully consider a therapeutic day program, a therapeutic day program with an extended day mandate to help with transitions from day to evening, and a therapeutic residential program. Thereafter, a school location must be offered as soon as possible, but no later than 30 days from the date of this order.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law:

1. IT IS HEREBY ORDERED that the New York City Department of Education’s Committee on Special Education shall, within ten days of the date of this Order, convene a review meeting to consider all current evaluative information. The CSE must also meaningfully consider the following placements:

1) NPS therapeutic day program;

2) NPS therapeutic day program with an extended school day mandate to help with transitions from day to evening; and

3) NPS therapeutic residential program. The CSE shall then develop a new IEP with an appropriate program and services in light of the findings therein; it is further

2. ORDERED that the New York City Department of Education shall offer a school placement (school location letter) at a school consistent with the newly recommended program within 30 days of the date of this Order.

SO ORDERED.

DATED: August 28, 2023 Leah Martin, Esq. (Signed Electronically)_

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 – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

- - - -

PARENT EXHIBITS

A. Due Process Complaint 6/22/23 5 pages

B. Prior Written Notice 6/21/23 11 pages

C. July [REDACTED] Letter of Recommendation 7/13/23 2 pages

D. Hospital Letter of Recommendation 4/19/23 1 page

E. June [REDACTED] Letter of Recommendation 6/2/23 1 page

F. IEP 6/6/23 37 pages

G. Treatment Team Leader Resume Undated 2 pages

H. Grandmother Testimony Affidavit 8/3/23 3 pages

IHO’S EXHIBITS

- - - -

Footnotes

[2] Grandmother is the student’s legal guardian, and they have lived together since 2014. (Ex. H-1).

[3] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and lower-case roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).

[4] Although the DPC contains an additional request for an interim home-based instructional program until a residential placement is made, that request was withdrawn at the hearing (Tr. 20-21) and will not be discussed further herein.

[5] DOE Representative iterated this concession at the hearing. (Tr. 21).

[6] This exhibit was not admitted because it was a duplicate of Parent Exhibit F. (Tr. 16-17). References to the DPH Transcript will be cited as (Tr.), followed by the page number(s) within the transcript.

[8] She has a bachelor’s degree in Psychology, a master’s in Social Work, and has lead her treatment team at [REDACTED] since 2010. (Ex. G-1). She has been working as a social worker for more than twenty years. (Ex. G-1).

[9] The DOE made no substantive arguments in their closing, indicating only that they “would just be relying on the evidence and testimony submitted on decision.” (Tr. 37).

[11] The exact details of the decision are unknown, as it was not offered into evidence.

[12] The IEP also recommended a 12:1+1 special class as an interim placement until an NPS placement could be found. (Ex. F- 29). The DPC raises no issues with the proposed interim placement so it will not be discussed further herein.

[13] There is inconsistency in the record whether the exact date was April 21 or 25. (Compare Ex. A-3; H-3 with C-1; Tr. 26).

[14] There is no concrete information about this in the record, and it is not raised in the DPC as a potential denial of a FAPE. Presumably, no placement had yet been offered because up until very recently the student was still hospitalized. Because the issue of a timely school placement was not raised in the DPC, it is not a live issue in dispute and will not be analyzed herein as a potential procedural violation.

[15] These include allegations that the student’s recommended program included insufficient individual instruction and support, insufficient social/emotional supports, and insufficient mental health supports, that the denial of a residential placement went against the recommendations of the student’s clinicians, and that Grandmother’s right to meaningfully participate in the IEP process was impeded. (Ex. A-2-3). These allegations all pertain to the recommendations made in the student’s 6/6/23 IEP,

[17] A copy of the full evaluation report is not in evidence.

[18] The student “has verbal tics when he becomes adrenally elevated and may exhibit a high amount of swearing.” (Ex. F-7). However, the 6/6/23 IEP notes that at the time of the meeting the student had “begun to substitute the cursing with squeezing his eyes/shutting them tightly.” (Id.).

[19] There is no one specifically listed as a school psychologist on the meeting’s attendance page (Ex. F-36-37), but it is unclear whether the district representative might also have been the school psychologist, which is often the case. There was no testimony about this at the hearing, and the DPC does not allege a procedural violation based on an improperly constituted CSE, so it will not be discussed as a potential ground for the denial of a FAPE.

[20] This document is not in evidence.

[21] This document is not in evidence.

[23] The record contains no information alleging who, specifically, these letters were from, what they said, when they were sent, how they were sent, and/or whether the DOE acknowledged receipt.

[24] It also noted that additional CO and “access to a counselor when needed” were added in response to her concerns. (Ex. F- 36).

[25] There are no allegations in the DPC relating to insufficient testing accommodations or goals, so they will not be discussed further herein.

[29] As discussed more fully below, that is not to say that the recommended program would not have offered a FAPE in the LRE. In fact, there is evidence in the record supporting the recommendation, such as the Neuropsychological and the June [REDACTED] Letter. However, in light of the conflicting recommendations in the record and the lack of DOE testimony explaining the CSE’s decisions, the DOE simply failed to meet their burden at the hearing.

[30] Rejecting the program recommendations of the parent and/or the student’s service providers does not amount to predetermination or a denial of meaningful participation if the CSE’s recommendations are supported by information available to it. Application of a Student with a Disability, Appeal Nos. 23-077 (disagreement between parent and school regarding whether afterschool services should be on the IEP does not amount to predetermination); 23-073, citing E.H. v. Bd. of Educ. of Shenendehowa Cent. Sch. Dist., 361 Fed. App'x 156, 160 (2d Cir. Oct. 16, 2009); E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 (E.D.N.Y. Aug. 19, 2013); DiRocco v. Bd. of Educ. of Beacon City Sch. Dist., 2013 WL 25959, at *18-*20; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008); Sch. For Language & Commc'n Dev. v. N.Y. State Dep't of Educ., 2006 WL 2792754, at *7 (E.D.N.Y. Sept. 26, 2006). See also Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 753 (2d Cir. 2018), citing T.S. v. Ridgefield Bd. of Educ., 10 F.3d 87, 89-90 (2d Cir. 1993); Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004)(noting that even if a district relies on a privately obtained evaluation to determine a student's levels of functional performance, it need not adopt wholesale the ultimate recommendations made by the private evaluator), aff'd, 142 Fed. App'x 9 (2d Cir. July 25, 2005).

[31] C.T. v. Croton-Harmon Union Free Sch. Dist., 812 F.Supp.2d 420, 433 (S.D.N.Y. 2011).

[32] Id. at 132; see also S.H. ex rel. W.H. v. Eastchester Union Free Sch. Dist., 2011 WL 6108523 (S.D.N.Y. 12/8/11); NYS Educ. Law. §4402(2)(b)(2);

[33] See Walczak, 142 F.3d at 131; Mrs. B., 103 F.3d at 1121; C.N, 2020 WL 7496435.

[34] See C.N., 2020 WL 7496435; E.S. ex rel. B.S., 742 F. Supp. 2d at 436; M.N., 2016 WL 4939559, at *57; P.K. 569 F. Supp. 2d at 387; G.W., 2013 WL 1286154, at *19; Yeger., 2022 WL 16745811.

[35] See Walczak, 142 F.3d 119, 132; P.K., 569 F.2d 371.

[36] If Grandmother had unilaterally placed the student in a residential program and sought funding, the analysis would be different because unilateral private placements are not held to the same LRE requirements. D.N. v. Bd. of Educ., 2015 WL 5822226, *34-35 (E.D.N.Y. Sept. 28, 2015) citing M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000). However, since Grandmother has requested that the DOE be ordered to include a residential placement in the student’s IEP, the LRE requirement must be met.