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FINDINGS OF FACT AND DECISION
| Case Number: | 252715 |
| Student’s Name: | REDACTED |
| School District: | REDACTED |
| Impartial Hearing Officer: | Eryn DeFontes, Esq. |
| Date of Filing: | August 18, 2023 |
| Hearing Requested by: | Parent |
| Date of Hearing: | October 19, 2023 |
| Record Close Date: | November 1, 2023 |
| Date of Decision: | November 1, 2023 |
Appearances:
For the Parent
Parent’s attorney
Parent
Pediatric Neuropsychologist
For the Department of Education (“DOE” or “District”)
DOE representative
BACKGROUND AND PROCEDURAL HISTORY
The Parent, through counsel, filed a Due Process Complaint (DPC) on or about August 18, 2023 wherein the Parent alleges that the DOE failed to offer the Student with a free appropriate public education (FAPE) for the 2022-2023 school year (SY).[1] By way of relief, Parent seeks an award of tuition funding and/or reimbursement for Student’s attendance at the Private School for the 2022-2023 school year which includes special education itinerant services (SEIT), speech language therapy (SLT), occupational therapy (OT) and physical therapy (PT), and reimbursement for transportation costs.[2] The undersigned Impartial Hearing Officer (IHO or undersigned) was appointed on August 21, 2023. The parties appeared for a prehearing conference on September 20, 2023. On October 19, 2023, both parties appeared for a virtual hearing. The DOE Representative maintained that they would defend FAPE and proffered exhibits 1 -7.[3] Parent submitted exhibits A-U into the record on consent of the DOE.
JURISDICTION
A decision in this matter is rendered pursuant to the IDEA and its implementing regulations the New York State Education Law and its implementing regulations,[4] and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504).[5]
Legal Framework
The IDEA provides that children with disabilities are entitled to a FAPE.[6] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[7] In order 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.”[8] Should a state receiving IDEA funding fail to provide a disabled child a FAPE, the parent “may remove the child to an appropriate private school and then seek retroactive tuition reimbursement from the state."[9] Parents seeking reimbursement must satisfy the three-pronged "Burlington/Carter" framework, which considers, (1) whether the school district's proposed program will provide a FAPE; (2) whether the parents' private placement is appropriate; and (3) a consideration of the equities.[10] School districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[11]
Positions of the Parties:
Parent alleges procedural and substantive denials of FAPE for the SY at issue: “the IEP proposed by the 2022-2023 school year mandates that [Student] receive 43 periods of instruction and related services per week…the DOE is unable to implement such a program”; the implementation date of September 1, 2022 as noted on the April 2022 IEP is not appropriate, as the Student requires 12-month (ESY) services; “the IEP” does not contain any goals in any academic area; the contact at proposed placement failed to contact the Parents at any time to schedule a visit so that Parents could learn more about the school”, Parents were denied meaningful participation.[12] The DOE argues that the Student was provided a FAPE for the SY at issue; the most recent IEP is both procedurally and substantively appropriate; the private school placement is not appropriate, SEIT services “are for preschool students; regarding the equities: timing of the ten-day notice (TDN) combined with the timing of the contract, compared with the prior written notices “did not show full cooperation”; the Private School costs are prohibitive.[13]
FINDINGS OF FACT AND DECISION
Prong I FAPE
"The IEP is 'the centerpiece of the [IDEA's] education delivery system for disabled children.'"[14] The IEP must be developed annually by "[a] school official qualified in special education, the child's teacher, the child's parents, and, where appropriate, the child."[15] "A school district meets its obligations to provide a FAPE by creating an IEP that is developed in compliance with the IDEA's procedural and substantive requirements."[16] If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ 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.[17] In the instant case, the evidence establishes that the April 1, 2022 IEP (April 2022 IEP/IEP) complied with the procedural requirements of the IDEA and was reasonably calculated to enable a Student to make progress appropriate in light of his unique circumstances. An IEP meeting was held on April 1, 2022, wherein Student was recommended to receive the following special education program: 12-month school year (ESY) in a 6:1:1, district 75 (D-75) special class (all core subjects; 35x/week), supported by related services of individual OT 3x/week for 30 minutes, Parent counseling and training (PCAT) 1x/month for 60 minutes, individual PT 2x/per week for 30 minutes, individual SLT 3x/week for 30 minutes, and special transportation “from the closest safe curb location to school.”[18] Among the required elements of an IEP is a statement of a student's academic achievement and functional performance and how the student's disability affects his or her progress in relation to the general education curriculum.[19] A Turning 5 Report is noted as evaluative data utilized in formulating the April 2022 IEP.[20] Accordingly, the Student’s present levels of performance comprehensively reflects Student’s strengths, deficits, interests, and learning styles.[21] Furthermore, the IEP sets forth measurable long and short-term goals which describe in detail strategies, expectations and anticipated progress.[22] Therefore, Parent’s claim that Student’s IEP “does not contain any goals in any academic area”, is rejected. As present levels of performance in an IEP informs long and short-term goals, it is clear that Student’s goals are specific and directly correspond to his documented needs and functioning at the time IEP was created:[23] For example, the IEP “goals” section notes in part:
SHORT-TERM INSTRUCTIONAL OBJECTIVES AND/OR BENCHMARKS (INTERMEDIATE STEPS BETWEEN THE STUDENT'S PRESENT LEVEL OF PERFORMANCE AND THE MEASURABLE ANNUAL GOAL):
Student will follow one-step, two-step related, and two step unrelated directions with cues; Student will identify familiar items in pictures by pointing in response to WH questions or commands; Student will identify common verbs in pictures in response to WH questions or commands Student will comprehend basic concepts (shape, categories, temporal concepts, spatial concepts, size) and he will comprehend functional use of objects.
Student will identify basic emotions (happy, sad, angry, scared, confused) based on expressions as well as pictures and stories; Student will comprehend personal and possessive pronouns (me, mine, you, your); Student will combine 3+ words to communicate his needs independently.
Student will combine 4-5 words to request and respond given a verbal model; Student will address his parents to obtain their attention; Student will provide yes/no response to questions; Student will use verbs +ing ending to describe actions or picture scenes; Student will label familiar items in pictures in response to WH questions or commands given gestural cues.[24]
In addition, although the Parent requests continued SEIT support as relief for the Student, the evidence demonstrates that the April 2022 IEP was crafted based upon the information available to the CSE team at the time, which in this case, consisted of Student’s turning 5 report comprised of a social history report in addition to PT, OT, and SLT progress reports.[25] The neuropsychological report submitted by the Parent notes evaluation dates as “January 6, 10, 11 & February 4, 2022”.[26] However, while the CSE is required to consider recent evaluative data in developing an IEP, so long as the IEP accurately reflects the student's needs the IDEA does not require the CSE to exhaustively describe the student's needs by incorporating into the IEP every detail of the evaluative information available to it.[27]
The Parent’s concerns as documented during the IEP meeting do not mention Student’s need for 1:1 SEIT support:
During the IEP meeting, both parents reported that at the beginning of this school year, [Student] would walk away or engage in [] behaviors but they see this behavior less; They would like to see [Student] expand his language skills and increase his interest in interacting with peers; They would like for [Student] to learn how to share, greet, and turn take or share items with peers his age. Both parents expressed that they would like to see [Student] improve his expressive and social communication skills. He needs to work on socializing and interacting with peers more. He needs to expand his play skills. Parents indicated that they would like to see [Student] prove his attention, focus, adaptive and fine motor skills.[28]
The pediatric neuropsychologist /neuropsychological recommended a small, contained classroom as an alternative to a preschool program for the school age Student:
[Student] has made progress in areas of need; however, still has significant delays in numerous areas of communication, social, emotional, behavioral, attentional, and executive motor functioning…the most appropriate placement at this time would be continuing with his current mainstream preschool setting with full-time 1:1 [SEIT] support.[29]
Recommendations: Full-time 1:1 [SEIT]..if this type of program was not available to [Student], I recommend…placement in a small, structured, full-time special education classroom with a very high teacher to student ratio within a small special education school…the school should have a board-certified behavior analyst (BCBA) on staff.[30]
The evidence shows that, at the time of the neuropsychological evaluation and the April 2022 IEP meeting, the Student was attending a preschool program in a “mainstream private school” in September 2021 in a class comprised of eleven (11) students, two (2) main teachers, and a teaching aide, “he also receive[d] support from his SEIT.”[31] When questioned pursuant to cross-examination, the pediatric neuropsychologist confirmed his alternate recommendation of “a small, contained classroom” in “a specialized special education school.”[32]
It has been held that although an IEP must provide for specialized instruction in a student’s area of need, generally, a CSE is not required to specify a methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher.[33] Moreover, an IEP's failure to include a particular special education service preferred by the parent does not make the IEP defective unless the service is necessary to provide the student with FAPE.[34] SEIT services are defined as, "an approved program provided by a certified special education teacher . . . , at a site . . . ,including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location",[35] recommended "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities".[36] In this case, Student is no longer in preschool and therefore not eligible for SEIT services.[37] Nonetheless, there is insufficient evidence to conclude that the Student requires SEIT type services, or special education teacher support services (SETSS) for a school age child,[38] in order to receive a FAPE. For example, the April 2022 IEP recommends a small 6:1:1 classroom in a special education setting, as recommended by the pediatric neuropsychologist and deemed appropriate based upon the Student’s documented needs.[39] The smaller ratio program recommended by the DOE, in contrast to Student’s prior classroom consisting of 11 Students is appropriate in that it provides the structure and support Student requires to make progress.[40]
Importantly, the “other options considered” portion of the IEP substantiates the CSE team’s recommendation of 6:1:1 in a D75 school:
Other options considered:
Integrated Co-teaching; Special Class in a community school 12:1+1[41] Special Class in a specialized school 8:1+1 Reason(s) for Rejection: Integrated Co-teaching: This option was considered but rejected as [Student] requires more intensive support. This program will not provide sufficient support.
Special Class in a community school 12:1+1 Special Class in a specialized school 8:1+1: This option was considered but rejected as [Student] requires a smaller setting given his global needs.[42]
Contrary to Parents’ contention, although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP does not amount to a denial of meaningful participation.[43] As discussed above, SEIT services are not available for school age students; there is no clear and convincing evidence that 1:1 SETSS or equivalent services are necessary for Student to receive a FAPE. Furthermore, as Student never attended the proposed placement,[44] any conclusion that the DOE could not implement Student's IEP is speculative. In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP.[45] Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public-school site was not appropriate. As the subject IEP did not recommend SEIT/or SETSS services, the Parent had no basis upon which to reject the placement. Therefore, Parent’s assertion that the DOE “is unable” to implement Student’s program is unavailing.[46]
The Parent further argues that the “Department of Education’s IEP does not provide for services to be provided to [Student] during the months of July and August of 2022.”[47] Parent’s argument is refuted by the credible evidence and therefore rejected. The Student’s prior IEP dated 8/25/2021[48] recommends 12-month (ESY) special education program/services, to encompass July and August 2022.[49] The subject April 2022 IEP notes a “projected” implementation date of Student’s special education programs/services on September 1, 2022,[50] and clearly indicates that Student “will receive the same special education program/services as recommended above”, during July and August.[51]
Based upon the foregoing, the undersigned finds that the DOE satisfied its burden to establish that the Student was provided with a FAPE for the SY at issue. The "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP".[52] In fact, the statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents",[53] as school districts are not required to "maximize" the potential of students with disabilities.[54] Accordingly, further discussion pursuant to the Burlington/Carter framework is therefore unwarranted.
Attorney’s Fees
Parent included a notice of claim for attorneys’ fees in the DPC.[55] Although the Parent in this is not the prevailing party, the IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction.[56] Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, their request is denied.
CONCLUSION
The DOE provided the Student with a FAPE for the 2022-2023 school year. The instant case is therefore dismissed in its entirety with prejudice.
ORDER
Based on the foregoing, it is hereby:
ORDERED that, the instant case be dismissed with prejudice.
SO ORDERED.
Dated: November 1, 2023
Eryn DeFontes
Eryn DeFontes, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DISTRICT EVIDENCE
| 1 | IEP | 4/1/22 | 28 |
| 2 | Prior Written Notice | 5/18/22 | 11 |
| 3 | Prior Written Notice | 6/15/22 | 5 |
| 4 | Social History Report | 3/11/22 | 2 |
| 5 | Physical Therapy Progress Report | 12/15/2021 | 3 |
| 6 | Speech Therapy Progress Report | 7/12/2021 | 5 |
| 7 | Occupational Therapy Progress Report | 12/17/2021 | 7 |
PARENT EVIDENCE
| A. | Impartial Hearing Request | 8/18/2023 | 5 pages |
| B. | Notice of Unilateral Placement | 6/17/2022 | 5 pages |
| C. | Neuropsychological Evaluation | -various- | 17 pages |
| D. | Financial Affidavit – Private School | 10/17/2022 | 1 page |
| E. | Enrollment Agreement | 7/11/2022 | 7 pages |
| F. | Student Daily Schedule | -undated- | 2 pages |
| G. | Progress Report – Occupational Therapy | 4/20/2023 | 5 pages |
| H. | Affidavit of Private School | 10/17/2023 | 9 pages |
| I. | Educational Progress Report | April 2023 | 9 pages |
| J. | Progress Report – Physical Therapy | 4/19/2023 | 3 pages |
| K. | Affidavit of Parent | 10/17/2023 | 8 pages |
| L. | Progress Report – Speech-Language | 4/20/2023 | 5 pages |
| M. | -omitted- | ||
| N. | Financial Affidavit – Transportation | 10/9/2023 | 1 page |
| O. | Affidavit of Ped Neuro, Psy.D. | -undated- | 6 pages |
| P. | 2022-2023 Academic Calendar | -undated- | 1 page |
| Q. | Private School Description | -undated- | 2 pages |
| R. | Progress Report – Speech-Language | 11/30/2022 | 4 pages |
| S. | Educational Progress Report | December 2022 | 8 pages |
| T. | Progress Report – Physical Therapy | 11/16/2022 | 4 pages |
| U. | Progress Report – Occupational Therapy | 11/30/2022 | 4 pages |
IHO Exhibit
| IHO i | 2021-2022 IEP | 8/25/21 | 26pp |
Footnotes
[1] P-A-2, 3.
[2] Id. at 3.
[3] Tr. 18:7-11. The DOE “rested” upon the proffered exhibits and did not call witnesses. The DOE cross-examined Parent’s witness.
[4] 20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300 et seq.; Educ. Law Art. 89 § 4404 et seq.; 8 NYCRR § Part 200.
[5] Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately.
[6] 20 U.S.C. § 1400 (d)(1)(A).
[7] 34 C.F.R. § 300.13.
[8] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[9] Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 454 (S.D.N.Y. 2005) (internal quotation marks omitted).
[10] See generally, Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 114 S. Ct. 361, 126 L. Ed. 2d 284 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985).
[11] NYS Educ. Law § 4404(1)(c). In this case, the DOE present a case through its documentary evidence and rested upon such.
[12] P-A-3; Tr. 31:19-25; 32:1-10; D-1.
[13] Tr. 18, 19:1-14.
[14] Mr. P, 885 F.3d at 741 (quoting Endrew F., 137 S. Ct. at 994).
[15] Walczak, 142 F.3d at 122.
[16] N.B. v. N.Y.C. Dep't of Educ., 711 F. App'x 29, 32 (2d Cir. 2017).
[17] 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].
[18] D-1-1, 20, 21, 24.
[19] 20 U.S.C. § 1414[d][l][A][i][I]; 34 CFR 300.320[a][1];8 NYCRR 200.4[d][2][i]; see 8 NYCRR 200.l[ww][3][i].
[20] D-1-1.
[21] D-1-1-9; see 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2).
[22] D-1-12-19.
[23] P-A-3; D-1-1-9, See also, 34 C.F.R. § 300.324(a); 8 NYCRR § 200.4(d)(2); Letter to New, 211 IDELR 464 (OSEP 1987)
[24] D-1-19.
[25] D-1; 4-7.
[26] P-C-1.
[27] 20 U.S.C. § 1414[d][3][A]; see M.Z., 2013 WL 1314992, at *9; D.B. v. New York City Dep't of Educ., 2011WL 4916435, at *8 [S.D.N.Y. Oct. 12, 2011]).
[28] D-1-5, 7, 9.
[29] P-C-12.
[30] P-C-12 (emphasis added); P-O-5, 6¶35.
[31] P-C-2.
[32] Tr. 52:2-12.
[33] Rowley, 458 U.S. at 204; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012]; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011] [noting the "broad methodological latitude" conferred by the IDEA]; Application of a Student with a Disability, Appeal No. 12-017.
[34] See, Winkelman v. Parma City Sch. Dist., 294 F. App'x 997, 51 IDELR 92 (6th Cir. 2008) (unpublished), cert. denied, 557 U.S. 946, 109 LRP 38984 (2009).
[35] Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii]; see "Special Education Itinerant Services for Preschool Children with Disabilities," Office of Special Educ. Field Advisory [Oct. 2015], available at http://www.p12.nysed.gov/specialed/publications/2015memos/documents/SpecialEducationItinerantServicesforPreschoolChildrenwithDisabilities.pdf; "Approved Preschool Special Education Programs Providing Special Education Itinerant Teacher Services," Office of Special Educ. [June 2011], available at http://www.p12.nysed.gov/specialed/publications/SEITjointmemo.pdf).
[36] 8 NYCRR 200.16[i][3][ii] [emphasis added].
[37] Tr. 56; Id.
[38] See, Laster v. Dist. of Columbia, 394 F. Supp. 2d 60, 65-66 [D.D.C. 2005]; Letter to Harris, 20 IDELR 1225 [OSEP 1993]). In a proceeding where SEIT services are at issue for a school-aged student, the substance of the services is, in essence, the provision to the student of educational services by a special education teacher who assists the student in addition to the classroom program.
[39] D-1-20, 21; D-2-10; P-C-12, 13.
[40] Student is also noted to have made progress in all domains. D-1-8.
[41] See 34 C.F.R. § 300.116(b)(2) (least restrict environment: educational placement for each student must be based on the student's IEP).
[42] D-1-27; Id.; see also, Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 51 IDELR 2 (2d Cir. 2008)
[43] See P.K., 569 F. Supp. 2d at 383 ["A professional disagreement is not an IDEA violation"].
[44] The DPC maintains, “[o]n June 22, 2022, the Parents received a Prior Written Notice and School Location Letter (“SLL”) assigning [Student] to a Special Class in a Specialized School [proposed placement]. P-A-3. The undersigned finds no procedural violations associated with the IEP meeting, the IEP itself, or the subsequent SLL.
[45] See M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 222 F. Supp. 3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016].
[46] P-A-3.
[47] Tr. 32:1-4.
[48] IHO i-1.
[49] Id. at 22; 23.
[50] D-1-20.
[51] Id. at 20, 21.
[52] Walczak, 142 F.3d at 130; see Rowley. 458 U.S. at 189.
[53] Id. at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).
[54] Rowley, 458 U.S. at 189, 199; Id.
[55] P-A.
[56] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).