Impartial Hearing Decision

District: [REDACTED]

Hearing Request by: [REDACTED] (hereinafter referred to as “Parents”)

Hearing Dates: December 5, 2023

Record Close Date: December 5, 2023

Hearing Officer: Anjelica Cappellino

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 5, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION

This matter comes before the undersigned hearing officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on July 2, 2023. See P-Ex. A.^[1] The Parents are asserting that the New York City Department of Education (“the District”) did not provide the Student with a free appropriate public education as required under the Individuals with Disability Education Act (“IDEA”) for the 2023/2024 school year, namely, by failing to recommend a continuation of Special Education Teacher Support Services (“SETSS”).

PROCEDURAL HISTORY

The undersigned Impartial Hearing Officer was appointed to the above matter on July 6, 2023. A prehearing conference was held on August 3, 2023 and status conferences were held on August 29, 2023, September 12, 2023, October 12, 2023, and October 25, 2023. A hearing was held on May 3, 2022 and May 10, 2022. The compliance date was extended, in 30-day increments, on August 29, 2023, September 17, 2023, and October 13, 2023. At the hearing held on December 5, 2023, the Parent admitted P-Ex. A through L into evidence. The District did not admit evidence or present witnesses.

STATEMENT OF FACTS

The Student’s Background and History

The Student is [REDACTED] years old and has received at-home instruction since Early Intervention due to multiple disabilities including neurological disorders, intractable epilepsy, cerebral palsy, and autism spectrum disorder. See P-Ex. A, Impartial Hearing Request, dated July 2, 2023 at 1. The Student is non-verbal, non-ambulatory, and G-tube dependent, and suffers from cardiac dysfunction due to a prior medical crisis and cardiac arrest. Id.

Since Early Intervention, the Student has received at-home instruction and services, which included 12 hours of SETSS per week. On September 6, 2022, in connection to a due process complaint filed for the two previous school years, an IHO issued on Order on Pendency finding that the Student was entitled to 12 hours of SETSS as part of her current placement. See P-Ex. C, Order on Pendency, Case #[REDACTED], dated September 6, 2022 at 5. This finding was made on the basis of a previous IHO decision concerning the 2019/2020 school year. Id. A hearing was conducted on Case #[REDACTED] and the IHO issued a decision ordering the District to fund 12 hours of SETSS. See P-Ex. B, Findings of Fact and Decision, Case #[REDACTED], dated January 6, 2023, at 16. Specifically, the IHO held that the Individualized Educational Program (“IEP”) inappropriately failed to include a SETSS recommendation despite including a list of SETSS goals to be worked on by non-SETSS providers. Id. at 14. The Most Recent IEP

Per the Student’s most recent IEP, she is classified with multiple disabilities. See P-Ex. I, IEP, dated June 27, 2023, at 1. The IEP notes that the Student is in a “medically fragile condition” and “demonstrates significant delays across all domains.” Id. at 2. The IEP also notes that SETSS services began in September 2020, but that these providers have been working with the Student since Early Intervention. Id. As the Student is non-verbal, non-ambulatory, G-tube dependent, and prone to seizures, she has severe limitations and restrictions and is dependent on adult caregivers for all of her needs. Her SETSS providers “focus on repetitive, consistent trials accompanied with frequent positive reinforcement.” Id. at 3. Over the course of the year, the Student has progressed with her SETSS provider and “can complete a task with partial assistance rather than full physical prompting.” Id. at 4. The SETSS provider utilizes an augmentative communicative device with the Student in order to communicate. Id. at 8.

The IEP contains numerous SETSS annual goals such as activating a “come here” button to access family members, following functional instructions, using an assistive technology device and assistive switch, among other goals. Id. at 12-15. Despite these listed SETSS goals, the IEP does not contain a recommendation for a continuation of 12 hours of SETSS. Id. at 17-18. The Student’s parent expressed concerns to the IEP team that SETSS was not mandated despite the prior IHO order which expired that month. Id. at 25. The Student’s Current Services The Parent offered the testimony of [REDACTED], one of the Student’s SETSS providers. See P-Ex. L, [REDACTED] Affidavit, dated November 28, 2023, at 1. [REDACTED] is a New York State-licensed teacher and Board-Certified Behavior Analyst and has been working with the Student for seven years. As she explains, the Student is medically fragile and requires a controlled environment. Her medical conditions and risk of seizures prevent her from traveling and attending a school-based educational program. Id. [REDACTED] works with two other teachers to provide SETSS, which she describes as “the centerpiece of her educational program.” Id. at 2. They work together to assure the Student’s goals are being worked on consistently and they report her progress as a team. They are working with the Student to use an assistive technology device to communicate. Id. at 2. They are also working on simple directions and other life skills such as pushing buttons and holding markers. Id. at 3. The Student’s day begins at 8:30 or 9:00 and runs as late as 4:30 pm. Id. at 3. It is [REDACTED] opinion that the academic goals of home instruction, as stated in the Student’s IEP, are not appropriate, in light of the home instructor only being with the Student one day per week. She believes that the SETSS instruction is more appropriate and that the SETSS goals are similar to those described in their own reports. Id. at 4; See also P-Ex. F, June 2023 SETSS Goals.

The Parent appeared at the hearing and testified to the Student’s background and the importance of her SETSS providers. Although the District did not present any evidence or witnesses, they asserted the position that they “stand by the IEP,” noting that SETSS goals can be accomplished by non-SETSS providers.

APPLICABLE LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. Walzczak, supra. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth.” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that every “child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See 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. 2010).

DECISION

The District’s argument that an IEP can list SETSS goals without actually recommending SETSS is without merit. The District presents no legal authority of such argument, nor do they present any evidence that SETSS goals could be met without providing SETSS instruction. Even more concerning than the argument that SETSS can be accomplished by non-SETSS providers, the District fails to address the fact that the Student’s at-home instruction is only for one hour per day. See P-Ex. at 17. Therefore, the District’s argument also relies on the premise that the 12 hours of currently provided SETSS can somehow be translated into five hours of non-SETSS instruction. There is simply no basis for this argument.

I find that the District failed to provide the Student with a free appropriate public education by failing to include a SETSS recommendation in the most recent IEP. Per the evidence and testimony presented by the Parents, the Student clearly benefits from SETSS and it is evident that such instruction is a critical part of her educational program. Therefore, I find that the Student is entitled to 12 hours of SETSS for the 52-week 2023/2024 school year.

ORDER

Based upon the Findings of Fact, the District failed to offer a free appropriate public education for the 2023/2024 school year. It is hereby: 1) ORDERED that the District shall fund 12 hours per week of Special Education Teacher Support Services (SETSS) for the 52-week, 2023/2024 school year at a reasonable market rate, by a provider of Parents’ choosing.

SO ORDERED

DATED: December 14, 2023

__/s/

Impartial Hearing Officer

Anjelica Cappellino, Esq.

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.

DOCUMENTS ENTERED INTO THE RECORD

Parent’s Evidence

A. Number of Exhibit Date Name of Document Pages DPC IH #[REDACTED] - Findings of Fact and 7/2/23 7 pages

B. Decision 1/6/23 19 pages

C. IH # [REDACTED] – Order on Pendency 9/6/22 9 pages

D. Doctor’s Letter 5/15/23 1 page

E. SETSS Annual Review 6/21/23 7 pages

F. SETSS Goals 6/23 2 pages

G. SETSS Data Sheet 10/11/23 2 pages

H. Student Schedule 23-24 SY 1 page

I. Individualized Educational Program 6/27/23 26 pages

J. Pendency Implementation Form 8/9/23 2 pages

K. Due Process Response 7/21/23 4 pages

L. SETSS Provider Affidavit 11/28/23 4 pages

Footnotes

[1] Parent's exhibits are collectively referred to as "P-Ex.".