Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 252249

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Roberta Wolf

Date of Filing: 06/22/2023

Hearing Requested by: Parent

Date of Hearing: 10/16/2023

Record Close Date: 11/13/2023

Date of Decision: 11/13/2023

Time Sensitive: Yes

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 16, 2023:

For the Department of Education:

[REDACTED], Representative

For the Student:

[REDACTED], Representative

[REDACTED], Parent Student

BACKGROUND

On June 22, 2023, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 252249, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation Act of 1973. ^[1] In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) when its Committee on Special Education (CSE) created a substantively inappropriate and procedurally non-compliant Individualized Education Program (IEP) for the 2023-2024 school year. The Parent claims inter alia that the CSE failed to evaluate the Student in all suspected areas of disability, failed to offer necessary one-to-one instruction, failed to recommend necessary services to ensure the Student’s physical safety, failed to recommend sufficient related services, and never offered the Student an appropriate placement.

In relief, the Parent seeks an order that: (1) DOE either provide or fund independent educational evaluations (IEEs) (neuropsychological, assistive technology (AT), and Prompts for Restructuring Oral Muscular Phonetic Targets (PROMPT) for speech-language therapy (SLT)); (2) maintains the Student’s placement in an REDACTED Network (REDACTED) program – either until the CSE convenes to consider the aforementioned IEEs and create a new IEP for the Student, or for the remainder of the 2023-2024 school year;

(3) provides the Student with transportation between his home and the REDACTED school for the 2023-2024 school year; and

(4) provides compensatory education and related services for any time that the Student does not have an appropriate program or placement. The Parent also requests a pendency order to maintain the Student at the last agreed-upon placement at REDACTED.

I was appointed impartial hearing officer (IHO) on August 3, 2023; conducted prehearing conferences on September 5, 2023, September 21, 2023, and October 2, 2023; and adjudicated a due process hearing on October 16, 2023. The parties signed an agreement for a neuropsychological IEE on October 3, 2023.^[2] At the hearing, DOE offered documentary evidence but no witness testimony to explain the contents of those documents. DOE also waived cross-examination of the Parent’s affiants. The Parent’s case consisted of affidavit testimony and documentary evidence. All of the parties’ exhibits were admitted into the record, a list of which is appended to this Order.

FINDINGS OF FACT

The Student is [REDACTED] years and his eligibility for special education supports and services is not in dispute. DOE has classified him with “Multiple Disabilities.”^[3] His diagnoses include REDACTED.”^[4] He is medically fragile, g-tube dependent, non-verbal, non-ambulatory, and his cognitive skills measure at the 18 to 24 month level.^[5] He wears a diaper and relies on caregivers for all activities for daily living.^[6] He began receiving special education services through the City’s Early Intervention program, after which the Committee on Preschool Special Education recommended him for a 12:1:3 program, specifically in an REDACTED preschool. ^[7] His preschool IEP for the 2022-2023 school year mandated a 12:1:3 special class with SLT, occupational therapy (OT), physical therapy (PT), and an AT device for the 12-month, extended school year at an REDACTED preschool in Brooklyn. ^[8]

REDACTED schools, both preschool and school-age, are a network of DOE-approved non-public schools. 9 REDACTED schools are only attended by special education students classified by DOE with “Multiple Disabilities,” the majority of whom are medically fragile; therefore, the schools offer highly specialized instruction, relevant related therapies (e.g., SLT, OT, PT, AT, aquatic), REDACTEDive physical education, an onsite orthotic clinic, wheelchair clinic (and wheelchair accessible buildings), REDACTEDive strollers, paraprofessionals, and full-time nursing staff.^[10] In summary, REDACTED schools exist to provide special education to children with needs like those of the Student. ^[11]

IEP meetings at REDACTED schools are held on-location and run by DOE employees. ^[12] To attend an REDACTED school, DOE must recommend a non-public school on a student’s IEP.^[13] DOE made that recommendation on the Student’s preschool IEPs for the 2021-2022 and 2022-2023 school years.^[14] Notably, the Student’s REDACTED preschool in Brooklyn shares a campus with an REDACTED school-age program (REDACTED school-age Brooklyn program) and the buildings are physically connected. ^[15]

The Student, entering Kindergarten for the 2023-2024 school year, is no longer eligible to attend an REDACTED preschool. On May ^[9], 2023, the CSE convened to create a “Turning Five” IEP for the Student’s transition from preschool to Kindergarten, and the Parent and an administrator from the REDACTED school-age Brooklyn program attended the meeting.^[16] They expressed their concerns to the CSE that the Student’s medical fragility required more support than a public school setting could offer and requested that the Student transition to the REDACTED school-age Brooklyn program.^[17] The REDACTED school-age Brooklyn program is capable of implementing the services outlined in the Student’s last-agreed, December 5, 2022, IEP and provides a substantially similar program to that received by the Student at the REDACTED preschool.^[18] The DOE school psychologist that attended the CSE meeting subsequently telephoned the psychologist for the REDACTED school-age Brooklyn program to discuss the Student’s needs.^[19] The REDACTED psychologist submitted a written recommendation^[20] for the Student’s placement for the 2023-2024 school year and the DOE psychologist agreed that the Student should attend the REDACTED school-age Brooklyn program. ^[21]

In creating the Student’s 2023-2024 IEP, DOE relied on a teacher report, related services progress reports, a classroom observation, and a social history update.^[22] The IEP cites heavily to the Student’s preschool teacher, providers, and the Parent. The IEP concludes: “[The Student] requires placement in a 12-month, structured setting with the current adult-to-child ratio. His program remains appropriate as his least restrictive environment.”^[23] However, DOE then reduced the Student’s student-to-teacher classroom ratio from 12:1:3 to 12:1:1; and the CSE mandated a District 75 classroom instead of placing him in the REDACTED school-age Brooklyn program. ^[24] The IEP did not recommend nursing services even though the “Management Needs” section identified “nurse services” as a requirement.

DOE provided the Parent with a School Location Letter; however, when the Parent attempted to tour the facility, she discovered that it was closed for the summer.^[25] DOE sent the Parent to another school, telling her it was the “summer location.”^[26] That school could not accommodate the Student’s wheelchair.^[27] Additionally, no one could answer the Parent’s questions regarding the curriculum or accommodations. ^[28]

The Parent did not consent to DOE’s proposed placement. The Parent found a copy of DOE’s Procedural Safeguards, which state in relevant part:

A child who received preschool special education services and is now school-age may, during hearings and appeals, remain in the same program as the preschool program if that program also has an approved school-age special education program. ^[29] The Student is currently at home without a school placement because the DOE has not offered him an interim placement pending the resolution of the Parent’s complaint. ^[30]

ANALYSIS

The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.^[31] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.^[32] For a procedural violation, an impartial hearing officer may find that a student did not (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.^[33] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE. ^[34]

FAPE Denied to the Student for the 2023-2024 School Year

A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”^[35] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.^[36] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.”^[37] Although DOE may sustain its burden based on documentary evidence alone, that evidence must convey, on its face, a cogent and responsive explanation for its decision that shows how the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances. ^[38]

Cir. 2005).

Here, DOE presented a copy of the IEP, prior written notice of the recommendations contained in the IEP, a school location letter, and progress reports. The IEP provides no explanation for the CSE’s recommendations, other than to state that the CSE rejected other options as “too restrictive.”^[39] Moreover, as previous mentioned, the IEP states that the Student’s current program and classroom ratio of 12:1:3 remains appropriate as his least restrictive environment. As a result, on this limited record, I do not find that DOE’s proffered documents, on their face, provide a cogent and responsive explanation for how the IEP is reasonably calculated to enable the Student to make progress appropriate in light of his circumstances. Therefore, I find that DOE failed to offer the Student a FAPE for the 2023-2024 school year. ^[40]

IEEs (AT, PROMPT/SLT) Granted

In D.S. v. Trumbull Bd. of Education,^[41] the Court highlighted the district’s responsibility to conduct sufficiently comprehensive evaluations of a student using a variety of evaluative and assessment tools. It also stated that if the district failed to conduct sufficiently comprehensive evaluations of the student, including failing to conduct assessments, the Parent then had a right to obtain an independent evaluation at public expense. At the hearing, DOE did not dispute the Parent’s claim or contest her request; therefore, the Parent’s request for IEEs for AT and PROMPT/SLT is granted. ^[42]

The Student’s Placement for Purposes of Pendency is REDACTED School-Age Brooklyn Program The IDEA and the New York State Education Law require that a student remain in his thencurrent educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.^[43] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.^[44] Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.^[45] The phrase, “then current placement” equates to either: (1) the placement described in the student’s most recently implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP. ^[46] Furthermore, nothing in the IDEA or its Federal and State implementing regulations prevents an IHO from ordering, through her equitable powers, that pendency services be provided in a specific educational setting when the DOE has failed to act. ^[47]

The Student is therefore entitled, during the pendency of these proceedings, to the services outlined in the December 5, 2022 IEP. The educational setting where those pendency services shall be provided is the REDACTED school-age Brooklyn program because it can implement the services in the Student’s last-agreed, December 5, 2022, IEP and it complies with DOE’s Procedural Safeguards as an approved school-age special education program in the same program as the approved preschool program.

To the extent that the DOE may argue that the recommended D75 school is an appropriate educational setting for purposes of pendency, that argument is at odds with the IDEA. Forcing the Student into the educational setting that the Parent is actively challenging here contradicts the stay-put provision and divests the Parent of the protections that the IDEA seeks to provide. ^[48] Although DOE holds “independent authority to determine how to provide” pendency services, ^[49] DOE must exercise that authority “in good faith.”^[50] However, because DOE here has not offered any educational placement (except the placement challenged by the Parent in this DPC, which per se cannot be Student’s “then-current educational setting”), it cannot show that it has acted in good faith.

It bears emphasizing that this case does not involve the Parent’s unilateral placement of the Student in a private school and subsequent removal to a second private school, both of which could implement the Student’s last-agreed-upon IEP, but where the Parent decided the second school could better provide for the Student’s needs.^[51] The facts in this case show that the Student’s age renders him ineligible to continue attending the REDACTED preschool and, because that placement is no longer available to the Student, pendency services must be implemented somewhere. DOE has not provided an educational setting at which the pendency services can be delivered.^[52] Moreover, by its own guidance and interpretation of applicable rules, DOE’s Procedural Safeguards expressly state that a student transitioning from preschool to Kindergarten may remain in the same program during hearings and appeals if that program has an approved school-age special education program. ^[53]

Transportation Granted

The Parent requests door-to-door transportation between her home and the REDACTED school-age Brooklyn school. The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”^[54] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits ‘comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’”^[55] In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the Parent to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”^[56] In the absence of any evidence or argument from DOE as to why the Student should not receive transportation, that request is granted.

ORDER

Based upon the above Findings of Fact, it is hereby:

1. ORDERED that the December 5, 2022, IEP is the last-agreed-upon placement and constitutes pendency in this matter; and

2. FURTHER ORDERED that the educational setting where pendency services shall be provided is the REDACTED school-age Brooklyn program. Therefore, DOE shall fund, retroactive to the filing of the Parent’s due process complaint on June 22, 2023, the Student’s placement at the REDACTED school-age Brooklyn school because it is capable of providing a substantially similar program as is set forth in the December 5, 2022, IEP; and

3. FURTHER ORDERED that DOE shall continue to fund the Student’s placement at the REDACTED school-age Brooklyn school for the remainder of the 12-month, 2023-2024, or until the CSE convenes to create a new IEP for the Student, whichever occurs sooner; and

4. FURTHER ORDERED that DOE shall provide the Student with door-to-door transportation to and from his home and the REDACTED school-age Brooklyn school for the 12-month, 2022-2023 school year or until the CSE convenes to create a new IEP for the Student, whichever occurs sooner; and

5. FURTHER ORDERED that DOE shall provide or fund, at the Parent’s choosing, the following comprehensive, independent educational evaluations:

a. A PROMPT/Speech-language therapy assessment at a cost not to exceed $5,000.

b. An assistive technology assessment at a cost not to exceed $4,000; DOE shall issue payment directly to the provider(s) of the Parent’s choosing within 14 days of submission of a copy of the invoice; and

6. FURTHER ORDERED that the CSE shall meet within 14 school days after all evaluations (AT, PROMPT/SLT, neuropsychological) have been made available to the District to consider the new data (i.e., the contents of the evaluations) and decide what changes, if any, are appropriate to the Student’s IEP and the services offered to him, given the findings of the evaluators. The CSE shall also consider the providers’ recommendations for compensatory education and services, if any, to make up for any education lost while the Student remained at home during the 2023-2024 school year due to DOE’s failure to provide comparable special education services during the pendency of this proceeding. The CSE shall, after due consideration of the IEEs and recommendations therein, provide the Parent with prior written notice that specifically addresses whether the CSE recommended or refused to recommend the services endorsed by those providers on the Student’s new IEP and explain the basis for the CSE’s recommendations, including the evaluative information relied upon in reaching those determinations.

SO ORDERED.

DATED: November 13, 2023

/s/ Roberta Wolf, Esq.

Impartial Hearing Officer

Roberta Wolf

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.

DISTRICT EVIDENCE

1. IEP 05/09/2023 2023-2024 22 pages DOE

2. Prior Written Notice 05/22/2023 2023-2024 1 page DOE

3. T5 School Location Letter 06/15/2023 2023-2024 1 page DOE

4. OT Progress Report 01/03/2023 7 pages DOE

5. Turning 5 Educational Progress Report 01/05/2023 3 pages DOE

6. Physical Therapy Progress Report 12/12/2022 3 pages DOE

7. Speech Language Progress Report 01/06/2023 4 pages DOE

8. Classroom Observation 04/18/2023 1 page DOE

PARENT EVIDENCE

A. Impartial Hearing Request and Pendency Form 07/31/23 11 pages

B. Final Notice of Recommendation 8/10/22 1 page

C. Individualized Education Program 12/5/22 24 pages

D. Procedural Safeguards Notice July 2017 51 pages

E. Pendency Affidavit of [REDACTED] 10/5/23 3 pages

F. Pendency Affidavit of [REDACTED] 10/5/23 2 pages

G. REDACTED Community Network Review of Current Annual Goals 5/23/23 3 pages

H. REDACTED Community Network Physical Therapy Progress Report April 2022 4 pages

I. REDACTED Community Network Occupational Therapy Progress Report 4/18/22 3 pages

J. REDACTED Community Network Speech and Language Therapy Progress Report 4/3/22 3 pages

K. Individualized Education Plan 7/22/22 23 pages

L. Resolution agreement 10/3/23 3 pages

M. Medical Record 8/4/22 2 pages

N. REDACTED Community Network Pupil Acceptance Letter 4/18/23 1 page

O. Affidavit of Parent, [REDACTED] 10/5/23 8 pages

P. Affidavit of [REDACTED] 10/5/23 13 pages

Footnotes

[1] Ex. A.

[2] Ex. L.

[3] Ex. 1-1.

[4] Ex. 1-1, M.

[5] Ex. 1-1.

[6] Ex. 1-3.

[7] Ex. K1.

[8] Ex. C1, B1.

[9] Ex. O, P.

[10] Ex. P.

[11] Id.

[12] Id.

[13] Id.

[14] Ex. O4.

[15] Ex. O, P.

[16] Ex. P.

[17] Id.

[18] Ex. N, P.

[19] Ex. P.

[20] Ex. N.

[21] Ex. P.

[22] Ex. 2.

[23] Ex. 1-5. (Emphasis added).

[24] Ex. 1.

[25] Ex. O6.

[26] Id.

[27] Id.

[28] Ex. O.

[29] Ex. D24, E, O.

[30] Ex. E, O.

[31] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

[32] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE,

[33] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

[34] 20 U.S.C. § 1415(f)(3)(E)(i).

[35] Rowley, 458 U.S. at 203.

[36] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.

[37] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[38] Id.

[39] Ex. 1-21; 2.

[40] I further find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. The Parent did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC.

[41] 975 F.3d 152, 162-163 (2d Cir. 2020).

[42] As addressed earlier, DOE already agreed to the Parent’s request for a neuropsychological IEE. Ex. L.

[43] 20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, Student X v. New York City Dep’t of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O’Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep’t of Educ., Appeal No. 08-061.

[44] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).

[45] Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906).

[46] Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student’s entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987).

[47] Application of a Student with a Disability, Appeal No. 23-019 (“[A]n IHO generally has broad authority to fashion appropriate equitable relief.”).

[48] 20 U.S.C. § 1415(j).

[49] Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 534 (2d Cir. 2020) (emphasis in original).

[50] T.M., 752 F.3d at 171; see also SRO 19-0595 at 15 (DOE has a “non-discretionary obligation to effectuate the student’s pendency placement”); Knight v. Dist. of Columbia, 877 F.2d 1025, 1028 (D.C. Cir. 1989) (“This court has held that if a student’s ‘then current educational placement’ becomes unavailable, DCPS must provide him with a ‘similar’ placement pending administrative and judicial approval of its eventual plans.”).

[51] See Ventura de Paulino.

[52] The Student’s transition from preschool to Kindergarten does not relieve DOE of its obligation to provide the Student with comparable special education services during the pendency of an appeal from the CSE’s recommendation for his first year of education as a school-age child. Application of the Dep’t of Educ., Appeal No. 21-238.

[53] 34 CFR 300.518, 8 NYCRR 200.5(m).

[54] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).

[55] Id. at 1375 (internal citations omitted).

[56] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww).