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FINDINGS OF FACT AND DECISION
Case Number: 166537
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 14, 2018
Actual Record Closed Date: December 31, 2018
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 14, 2018
For the Student:
ESQ., Attorney
ESQ., Attorney
parent
parent
Family Worker
For the Department of Education:
District Representative
I]. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated June 20, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2015/16 and 2016/17 school years (Ex. P-A at 1-2, IHO-I at 1).'[1] When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“JEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR 8§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(1).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(4)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“THO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the as “Ex.” introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5G)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(4)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the THO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR§ 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on June 21, 2017. See 8 NYCRR § 200.5(4)(3)G). The parties participated in a resolution session meeting on September 8, 2018 (Ex. P-A at 12). See 8 NYCRR § 200.5(j)(2)(). On October 1, 2018, the parent filed an amended due process complaint (Ex. P-A). See 8 NYCRR § 200.5(4)(7). A prehearing conference with the parties was held on October 3, 2018 to clarify the hearing issues and set a date for the hearing (R. 2-7). See 8 NYCRR § 200.5G)(3)(x1). A hearing on the merits of this matter was thereafter held on November 14, 2018.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v). "Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-III - IHO-XVI). See 34 C.F.R. § 300.515(c); 8 NYCRR
§ 200.5(j)(5).
Hil. FACTUAL BACKGROUND
At the time of the October 1, 2018 amended due process complaint, the student was and has been diagnosed with Unspecified Trauma and StressorRelated Disorder, a Disruptive Mood Dysregulation Disorder, an Oppositional Defiant Disorder, and an Attention Deficit Hyperactivity Disorder — Combined Type (Exs. P-A at 13, P-B at 11, IHO-I). For the 2017/18 school year, the student attended kindergarten at the , a New York State-approved, therapeutic nonpublic school in Brooklyn per a Nickerson letter (Exs. P-A at 11, P-B at 8-9)? The student's current eligibility for special education and related services as a student with an emotional disturbance is not in dispute in this hearing (Ex. P-A at 2). See 8 NYCRR § 200.1(zz)(4).[4]
Concerned about delays in the student’s social-emotional development and speech, the parent sought preschool special education evaluations as the student was about to turn three (3) years old. His evaluations began on February 12, 2015 (Ex. P-A at 3).
The evaluations revealed a child with significant social-emotional delays and troubling behaviors. The social history report noted that the student was “overactive and very aggressive,” and that his mother reported that he frequently “hits, bites and spits on
°A "Nickerson letter" is a remedy for a systemic denial of a FAPE that was imposed by the U.S. District Court based upon a class action lawsuit, and this remedy is available to parents and students who are class members in accordance with the terms of a consent order. See R.E. v. New York City Dep't of Educ., 694 F.3d 167, 192, n.5 (2d Cir. 2012). The Nickerson letter remedy authorizes a parent to immediately place the student in an appropriate special education program in a State-approved nonpublic school at no cost to the parent. See Jose P. v. Ambach, 553 IDELR 298, 79-cv-270 (E.D.N.Y. Jan. 5, 1982). The remedy provided by the Jose P. decision is intended to address those situations in which a student has not been evaluated within 30 days or placed within 60 days of referral to the CSE. See id.; see also R.E., 694 F.3d at 192, n.5; M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 279 (E.D.N.Y. 2010). “Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) An inability to learn that cannot be explained by intellectual, sensory, or health factors; (11) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (111) Inappropriate types of behavior or feelings under normal circumstances; (iv) A generally pervasive mood of unhappiness or depression; or (v) A tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4). others.” In addition to demonstrating delays in the student’s cognitive and communication skills, the psychological evaluation documented the student’s behavioral challenges. It noted that the student exhibited “blow average frustration tolerance, attention span and concentration skills. He appeared overly active and impulsive in his play, typically required considerable encouragement to adequately attend to tasks.” As the psychological evaluation report stated, the tests indicated “significant delays in his self-regulatory behaviors and social-emotional functioning” (Ex. P-A at 3).
The student’s initial preschool IEP meeting took place on April 30, 2015, more than sixty (60) days calendar days after his parent signed consent for evaluations. In attendance at the meeting were a Committee on Preschool Special Education (the “CPSE”) administrator and the parent. A psychologist participated over the phone. There was no educator present, neither a special education teacher nor a general education teacher. The IEP team recommended five (5) hours per week of special education itinerant teacher (“SEIT”) services. Although the IEP indicated that the student’s social development was delayed — with below age level frustration tolerance, concentration skills, attention skills — and that he was very aggressive, the CPSE did not conduct an functional behavioral assessment (“FBA”), recommended or include a behavioral intervention plan (“BIP’’), nor consider if further assessments or evaluations were necessary.[5] Instead, the CPSE concluded that the student did not need strategies, including positive behavioral interventions, supports and other strategies, to address behaviors that impeded the student’s learning or that of others (Ex. P-A at 3-4).
A few months after the IEP meeting, the student was enrolled in a preschool
°Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm). program at a DOE pre-K program, - , and started attending on or about July 2015. Based on his IEP, the student received one hour of SEIT instruction each day. It soon became apparent to school staff, however, that the student’s behavior was disruptive and interfering with classroom activities and learning. Within the first few weeks of attending the preschool, the parent was informed that the student was difficult to manage in the afternoon. Over time, the preschool began to complain increasingly to the parent about the student’s behavior (Ex. P-A at 4).
In February 2016, the student’s SEIT submitted a program report to the CPSE. The report highlighted many behavioral concerns. It indicated that the student needed individualized attention and continued to have difficulty socializing with others. The SEIT stated that the student “benefits well when he learns in a 1:1 setting” and recommended that he be placed in a smaller class setting with more teacher support (Ex. P-A at 4-5).
In May 2016, the CPSE held an annual IEP meeting for the student. The student’s general education teacher, who spent the entire school day with him, did not participate over the phone or in person, and there was no representative from the student’s preschool at the meeting. The CPSE continued to recommend five (5) hours of SEIT services per week and added several management strategies to the IEP (Ex. P-A at 5-6).
From September 2016 to March 2017, the DOE did not provide the student with any SEIT services. With no services in place, the student became increasingly disorderly and often aggressive; he ran out of school on multiple occasions, screamed and yelled at school staff, hit other students, had regular tantrums, threw himself to the floor and engaged in risky activities such as climbing and jumping off furniture. The DOE pre-K program placed the student on a truncated schedule, dismissing him from school by the end of the morning for part of the 2016/17 school year, causing him to miss a substantial amount of instruction due to his disability. The pre-K staff told the parent that they could not manage the student’s behavior, and that he was a danger to himself, his peers and school staff (Ex. P-A at 6-7).
The CPSE reconvened on March 16, 2017. The CPSE increased the student’s recommended SEIT services to fifteen (15) hours per week and recommended the student for twelve month services.[6] The CPSE also authorized an occupational therapy evaluation and an FBA. The CPSE administrator who chaired the meeting rejected the parent’s request for a 1:1 paraprofessional; asserting that it would be too restrictive (Ex. P-A at 7-9).
Following the IEP meeting, data collection began for the FBA. A meeting was held on May 5, 2017 to develop a BIP. Present at the meeting were the parent, the preschool director, the student’s teacher and SEIT, the SEIT supervisor, and counsel for the student. The BIP offered general strategies for improving behavior, such as implementation of a visual schedule and a token system to reward positive behaviors and interactions (Ex. P-A at 9).
An IEP meeting was held on May 16, 2017. The student’s general education teacher did not participate in the meeting. Results from the occupational therapy evaluation were reviewed and two (2) sessions of occupational therapy a week were recommended. The student was found to have significant sensory integration deficits as evidence by his inability to remain focused, being easily distracted by visual stimuli and sounds around him. Accordingly to the evaluation, the deficits impact his attention and ability to self-regulate, and lead to “aggressive behaviors, decreased safety and body awareness, and significantly decreased attention span.” The IEP meeting participants stated that the student continued to have regular outbursts, had a hard time transitioning, and needed constant individual attention, praise and soothing. The CPSE agreed to recommended two (2) counseling sessions a week (Ex. P-A at 10).
Although the May 2017 IEP stated that occupational therapy and counseling services would commence on June 1, 2017, the DOE did not provide those services until July 2017. In addition, the DOE pre-K staff did not implement his BIP. Without recommended services and support, the student continued to exhibit challenging behaviors for the remainder of pre-K and the pre-K staff continued to remove him from the classroom and other pre-K activities (Ex. P-A at 11).
The student’s kindergarten IEP recommended placement in a 12:1+1 special class in a community school. The DOE, however, assigned the student to a school that did not have 12:1+1 special classes and the assigned school stated that it could not implement the student’s IEP. Based on the DOE’s failure to provide the student with the special class mandated by his IEP, the parent requested a Nickerson (P-1) letter from the DOE and placed him at the for the 2017/18 school year. At the 5a state-approved non-public school that specializes in serving children with behavioral challenges, the student enrolled in a 6:+1 special class with a crisis management paraprofessional, occupational therapy, and counseling (Ex. P-A at 11).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE declined to offer any evidence at the hearing that it developed an appropriate IEP for the student for the 2015/16 or 2016/17 school years (R. 17-18). The DOE, however, objects to the amount of cognitive behavior therapy requested by the parent (R. 109-110).
B. The Parents
During the 2015/16 and 2016/17 school years, the student was denied a FAPE that met his cognitive and emotional needs. The IEPs develop in April 2015, May 2016, March 2017 and May 2017 were all procedurally and substantively flawed, and led to decreased instruction time, improper discipline and an escalation of challenging behaviors. The DOE failed to provide the student with the counseling and other behavioral supports he needed during preschool. In compensation for the DOE’s failure to provide the student with a FAPE, the DOE should be ordered to provide two (2) years of cognitive behavioral therapy conducted by or another provider chosen by the parent (R. 19-22, 110-117; Exs. P-A at 13, IHO-I).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[7]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); RE. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); MH. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP... Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck
Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[mJultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are 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. See 20 U.S.C. § 1415(f(3)(E)GD; 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(4)(4)(i1); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; 4.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an [HO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)G). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement." See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some ‘meaningful’ benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(1); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(Q), (2)G)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); SW. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition ret1mbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’! Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Jd. at 526.
At the hearing, the DOE declined to offer any evidence that it developed appropriate IEPs for the student, or otherwise offered the student a FAPE, for the 2015/16 and 2016/17 school years. The student attended preschool at for two years. , a family worker, testified that is a DOE pre-K program. Both the parent and testified about the many challenges the student experienced in preschool. The student was hyper, could not follow class routines, or work well with others. He was aggressive and prone to outbursts. He would scream, yell and hit others. The student exhibited those challenging behaviors practically every day and often multiple times a day. He also engaged in unsafe behaviors, such as touching hot radiators, cutting himself, kicking and throwing himself against the wall, and throwing rocks at other students on the playground.
While the student attended the DOE pre-K program, his preschool staff truncated his schedule because they could not manage his behavior, and required him to leave earlier than his peers, at 12:00 p.m. to 1:00 p.m. each day. explained that even during the limited hours he was in preschool, the preschool staff regularly removed him from his class and sent him to a school office, causing him to miss even more time and instruction and isolating him from his peers (R. 27-52).
Despite those challenging behaviors, the DOE failed to provide the student with any counseling services during the 2015/16 and 2016/17 school years. The DOE also denied the parent’s request for a psychiatric evaluation to help determine how to address the student’s challenging behaviors.
Accordingly, I find that the DOE failed to provide the student with a FAPE for the 2015/16 and 2016/17 school years and that the student is entitled to compensatory additional services to remedy the denial of FAPE. In compensation for the DOE’s failure, the parent seeks an Order requiring the DOE to pay for specialized therapy sessions once a week for two years. The evidence contained in the hearing record demonstrates that such therapy is an appropriate remedy for the student.
An independent psychiatric evaluation was conducted by , M.D. of the in February 2018. After conducting interviews with the parent and school staff, reviewing school records, and conducting assessments, diagnosed the student with an unspecified trauma and stress-related disorder and an attention deficit hyperactivity disorder. The evaluation documented a series of problematic behaviors spanning from preschool through kindergarten, including instances of self-harm and classroom disruptions of screaming, yelling, running, and refusing to follow directions. The evaluation also reported on aggressive behaviors in school, such as biting and punching students and school staff. The evaluation concludes with a series of recommendations and notes that the “primary addition to treatment for [the student] is targeted weekly individual therapy with a therapist experienced in working with trauma-focused pediatric cases.” recommended at least one session a week of psychotherapy, including trauma-focused cognitive behavior therapy, for at least a year or until the student’s behavior improves in school and at home (Ex. PB).
The parent has identified as the agency that can provide the student with psychotherapy, including trauma-focused cognitive behavior therapy at home after school. , M.D., a psychiatrist and medical director of , testified via affidavit that he has reviewed the psychiatric evaluation from , agrees with the diagnosis and recommendations, and believes that can serve the student appropriately. stated that has a provider who’s available to work with the student in his home to provide weekly psychotherapy, including trauma-based cognitive behavior therapy. The cost of one-hour session of psychotherapy provided by in the home is $450 (Ex. P-I).
The parent testified that she earns approximately $88 dollars a week. She resides in public housing and receives food stamps. She has submitted her 2017 tax return which indicates that her total income in 2017 was $1,020. She also has two dependent children. Thus, the parent is unable to pay for therapy costs upfront and wait for reimbursement from the DOE for these compensatory services (R. 63-96; Ex. P-H).
The hearing record demonstrates that the student’s behavioral difficulties significantly interfered with his preschool education, and the psychiatric report details that his behaviors were still interfering with his academic progress in kindergarten. In compensation for the DOE’s failure to provide a FAPE for the two years the student was in preschool, the DOE will be directed to fund 104 hourly sessions of psychotherapy, including trauma-focused cognitive behavior therapy, provided by at a rate of $450 per session.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
ITIS
HEREBY ORDERED THAT:
The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2015/16 and 2016/17 school years is SUSTAINED; and Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt, at public expense, of 104 hourly sessions of psychotherapy, including trauma-focused cognitive behavior therapy, provided by at a rate of $450 per session.
Dated: January 15, 2019
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
Amended Due Process Complaint Notice/Impartial Hearing Request, 10/1/18
OmWDMO
Diagnostic Psychiatric Evaluation, 3/14/18, 14 pgs.
Curriculum Vitae — , M.D., 9/20/18, 14 pgs.
Pediatric Neurology Outpatient Evaluation, 2/21/17, 3 pgs.
Letter to CPSE from parent (requesting psychiatric evaluation), 6/9/17, 2 pgs.
Excerpt from 2016 Pre-Kindergarten Directory, undated, | pg.
DOE & ACS Statement on Positive Behavior Guidance, undated, 10 pgs.
H. Parent Income Tax Returns, 2017, 12 pgs.
I. Affidavit of , 11/13/18, 2 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint Notice/Impartial Hearing Request, 6/20/17, 14 pgs.
II. Subpoena, 4/10/18, 2 pgs.
II. Confirmation of Extension, 9/5/17, 1 pg.
IV. Confirmation of Extension, 10/5/17, 1 pg.
V. Confirmation of Extension, 11/6/17, 1 pg.
VI. Confirmation of Extension, 1/4/18, 1 pg.
VII. Confirmation of Extension, 2/5/18, 1 pg.
VII. Confirmation of Extension, 3/1/18, 1 pg.
IX. Confirmation of Extension, 4/3/18, 1 pg.
X. Confirmation of Extension, 5/7/18, 1 pg.
XI. Confirmation of Extension, 6/1/18, | pg. XH. Confirmation of Extension, 7/5/18, 1 pg.
XII. Confirmation of Extension, 8/6/18, 1 pg.
XIV. Confirmation of Extension, 9/1/18, 1 pg.
XV. Confirmation of Extension, 10/5/18, 1 pg.
XVI. Confirmation of Extension, 12/17/18, 1 pg.
Footnotes
[1] "References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-III - IHO-XVI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] Em ti nal disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (i) An inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) Inappropriate types of behavior or feelings under normal circumstances; (iv) A generally pervasive mood of unhappiness or depression; or (v) A tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
[5] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the problem behavior, the definition of the behavior in concrete terms, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm).
[6] Twelve-month special services and/or program means a special education service and/or program provided on a year-round basis, for students determined to be eligible in accordance with sections 200.6(k)(1) and 200.16()(3)(v) of this Part whose disabilities required a structured learning environment of up to 12 months duration to prevent substantial regression. A special service and/or program shall operate for at least 30 school days during the months of July and August, inclusive of legal holidays, except that a program consisting solely of related service(s) shall be provided with the frequency and duration specified in the student’s individualized education program. 8 NYCRR§ 200.1(eee).
[7] ’The term “free appropriate public education” means special education and related services that — (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.